Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith. (b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein. (c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent. (d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 2 contracts
Sources: Security Agreement (Sunpower Corp), Revolving Credit Agreement (Sunpower Corp)
Accounts. (a) Each Grantor hereby covenants and agrees that it The Trustee shall keep accurate and maintain detailed accounts of all investments, receipts and disbursements and other transactions hereunder, and all accounts, books and records relating thereto shall be open at all reasonable times to inspection and audit by any person designated by the Company or entitled thereto, under ERISA. Such accounts of all receipts and disbursements shall include accounts of all contributions, distributions, purchases, sales and other transactions of the Trust Fund. Within 60 days after the close of each fiscal year of the Trust Fund and of any other period agreed upon by the Trustee and the Committee the Trustee shall render to the Committee a statement of account for the Trust Fund for the period commencing with the close of the last preceding period and a list showing each asset thereof as of the close of the current period and its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon fair market value. The Trustee shall rely conclusively upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request determination of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory issuing insurance company with respect to the Security Agentfair market value of each insurance contract and upon the determination of the Investment Adviser of each Separate Account with respect to the fair market value of those assets allocated thereto for which the Trustee deems not to have a readily ascertainable value, all Chattel Paper, Instruments and other items evidencing Accounts (other than any the Trustee shall have no responsibility with respect thereto. An account of the Trustee may be approved by the Committee by written notice delivered to the Security Agent as provided herein) with an appropriate reference Trustee or by failure to object to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received account by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be notice delivered to the Security Agent Trustee within eighteen (or its agent or designee18) appropriately indorsed months of the date upon which the account was delivered to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior Committee. The approval of an account shall constitute a full and complete discharge to the date hereof Trustee as to all matters set forth in that account as if the account had been settled by a court of competent jurisdiction in an action or proceeding to which the Trustee, the Company and (ii) with respect to the Committee were parties. In no event shall the Trustee be precluded from having its accounts settled by a judicial proceeding. Nothing in this article shall relieve the Trustee of any such Accounts hereafter arisingresponsibility, immediatelyor liability for any responsibility, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinERISA.
Appears in 2 contracts
Sources: Master Retirement Savings Trust (Dole Food Company Inc), Master Retirement Savings Trust (Dole Food Co Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithLender.
(b) Upon Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuouslyAccounts, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinLender’s or Debtor’s name.
(c) The Security Agent shall have the right at Lender may file any time following the occurrence of an Event of Default that is continuing to notify, or require claim and take any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and action in any event within two Business Days) deposited by such Grantor in court of law or equity which Lender determines to be appropriate for the exact form received, duly indorsed by such Grantor to the Security Agent purpose of collecting any or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts; provided, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor however, that Lender shall not adjustbe obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, settle or compromise to present or file any claim or take any action to collect or enforce the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent all of the Security AgentAccounts.
(d) With respect Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byLender, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blankAccount Debtors: (i) with respect of Debtor’s grant of a security interest in the Accounts to any such Accounts in existence on the date hereof, on or prior to the date hereof Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with respect the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such Accounts hereafter arisingpayment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, immediatelywith recourse, all checks, drafts, money orders, notes, and in other instruments or documents representing such payment; (iii) shall not commingle such payment with any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on Debtor’s other funds or prior to the date hereof property; and (yiv) with respect shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinLender.
Appears in 2 contracts
Sources: Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its open no bank accounts other than (i) the Proceeds Accounts, including records of all payments received and all credits granted on such (ii) the Project Accounts, all merchandise returned (iii) the Earnings Accounts, (iv) the Debt Service Reserve Account, and all (v) such other dealings therewith.accounts as from time to time may be approved by the Facility Agent;
(b) Upon maintain no bank accounts other than (i) the occurrence of an Event of Default that is continuingProceeds Accounts, each Grantor hereby covenants and agrees that(ii) the Project Accounts, at (iii) the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Earnings Accounts (iv) the Debt Service Reserve Account, and (v) any other than any delivered to account(s) as may be approved by the Security Facility Agent as provided hereincontemplated in sub-paragraph (v) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.paragraph (a) of this clause 10.2.9;
(c) The maintain each of the Proceeds Accounts, the Earnings Accounts, the Project Accounts and the Debt Service Reserve Account with the Account Bank;
(d) use all reasonable endeavours to procure that the Charterer and any other relevant person shall pay all Charter Rate and other Earnings relating to each Rig into the Earnings Account relating to that Rig and the Borrower further agrees that it will procure that all payments of Charter Rate and other Earnings relating to that Rig which are received by it, the Rig Owner which is the owner of that Rig or any other member of the Group shall be paid into the Earnings Account relating to that Rig for application in accordance with clause 5 of the Deed of Proceeds and Priorities;
(e) pay or procure the payment of all compensation from time to time during the Security Period received in respect of any requisition of a Rig for hire into the Earnings Account relating to that Rig for application in accordance with clause 5 of the Deed of Proceeds and Priorities;
(f) pay or procure the payment of any Loss of Earnings Proceeds relating to a Rig into the Earnings Account relating to that Rig for application in accordance with clause 5 of the Deed of Proceeds and Priorities;
(g) procure the payment of any moneys received or receivable by a Rig Owner from the Hedging Provider under or pursuant to the Hedging Agreements to which that Rig Owner is a party into the Earnings Account relating to the Rig of which that Rig Owner is the owner;
(h) pay or procure the payment of the proceeds of any confiscation and expropriation insurances (if any) in respect of a Rig into the Proceeds Account relating to that Rig;
(i) do nothing which may prevent the Security Trustee and the Facility Agent shall have applying all Charter Rate and other Earnings relating to a Rig in accordance with the right at Deed of Proceeds and Priorities and in repayment or prepayment (as applicable) of the Loans, in accordance with clause 8.7 or clause 8.8 hereof and clause 5 and/or 9 of the Deed of Proceeds and Priorities, as the case may be;
(j) pay (A) proceeds in respect of any time disposal of the whole or part of a Rig, (B) Total Loss Proceeds relating to that Rig and (C) the whole amount of any other Insurance Proceeds relating to that Rig (excluding Loss of Earnings Proceeds) where the amount of those proceeds exceeds the Casualty Amount and (following the occurrence of an Event of Default that is continuing to notify, or require Default) any Grantor to notify, any Account Debtor of Insurance Proceeds less than the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent Casualty Amount and (CD) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any guarantee payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the AccountsRig Rights relating to that Rig, any Supporting Obligation or Collateral Support shall be received procure that all such proceeds are paid into the Proceeds Account relating to that Rig, for application in trust for the benefit accordance with clause 6 of this Agreement and/or clauses 5, 6 or 9 (as applicable) of the Security Agent hereunder Deed of Proceeds and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle Priorities; and
(k) procure that all Liquidated Damages payable to a Rig Owner or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent in respect of the Security Agent.
(d) With respect Rig of which that Rig Owner is the owner, are paid into the Proceeds Account relating to any Accounts constituting Collateral that Rig, for application in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) accordance with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article clause 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 Deed of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof Proceeds and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.Priorities;
Appears in 2 contracts
Sources: Project Loan Agreement, Project Loan Agreement (QGOG Constellation S.A.)
Accounts. (a) Each Grantor hereby covenants and agrees that it Qualified Intermediary shall keep and maintain at its own cost and expense satisfactory and complete records establish the Accounts during the term of its this Agreement. The purpose of the Accounts, including records the procedures with respect to the collection, separation, consolidation, transfer and disbursement of all payments received funds with respect to each Account, the procedures with respect to the payment for Replacement Property, certain reporting requirements of the Exchangers, the investment of funds on deposit in the Exchange Account and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.funds transfer procedures with respect to the Accounts are described in greater detail in Exhibit C.
(b) Upon As part of its assignment of the occurrence Relinquished Property Agreement to Qualified Intermediary pursuant to Section 2.1 above, each Exchanger shall designate the Asset Class(es) of an Event the Relinquished Property to which the Relinquished Property Agreement relates and as described in Exhibit A, and shall instruct Qualified Intermediary as to the amount of Default the Qualified Proceeds to be received pursuant to such Relinquished Property Agreement that is continuing, allocable to Relinquished Property of each Grantor hereby covenants such Asset Class designated by such Exchanger. Upon receipt of such instruction by the applicable Exchanger and agrees that, at the request of the Security AgentQualified Proceeds from the Transferee, it Qualified Intermediary shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to deposit the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to Qualified Proceeds into the Security Agent Exchange Account as provided herein) with an appropriate reference to the fact that instructed by such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinExchanger hereunder.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest Any funds on deposit in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly shall be invested in Permitted Investments. Qualified Intermediary shall credit to the Security Agentapplicable Account, (B) notifyon a periodic basis or at the time of closing of the account, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox the interest or other arrangement directly to the Security Agent and (C) enforcesimilar return earned, at the expense of any Grantorif any, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, on funds on deposit in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect Qualified Intermediary shall disburse, in the form of ACH credits or wire transfers, Qualified Proceeds from the Exchange Account to one or more Disbursement Accounts for the acquisition of Replacement Property, as described in Section 4.2 above and to make non-Qualified Disbursements. In connection with any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, checks or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof EFT to be delivered prepared and executed in accordance with this Section, Qualified Intermediary may appoint any person (including, without limitation, Exchanger as its agent for the limited purpose of preparing such checks and/or verifying such EFT disbursement or transfer files, and may appoint any person (including, without limitation, the person designated as its agent for the purpose of preparing such checks and/or verifying such EFT disbursement or transfer files) as its attorney-in-fact with full power and authority to execute and deliver such checks and/or to verify the amounts of such EFT disbursement or transfer files payable with funds on deposit in a Disbursement Account on behalf of Qualified Intermediary pursuant to a revocable limited power of attorney in the form attached as Exhibit E hereto.
(e) The Exchange Account shall be a restricted account, and each Exchanger shall have no right to pledge, borrow or otherwise obtain the benefits of Qualified Proceeds held in such Account, except as provided in Section 3.2(ii) above, Article IV above and to the Security Agent (or its agent or designee) appropriately indorsed extent not inconsistent with Treasury Regulation Section 1.1031(k)-1(g)(6). Upon a Disbursement Occurrence, funds, if any, contained in the Exchange Account which no longer constitute Qualified Proceeds shall be transferred to the Security Agent applicable Exchanger.
(f) All funds held in Accounts pursuant to this Agreement shall only be transferred or indorsed disbursed upon the joint written (including electronic) instruction of Qualified Intermediary and Exchanger. Nothing in blank: (i) with respect this paragraph shall be construed to any such Accounts in existence on the date hereof, on or prior permit a disbursement to be directed by either party except to the date hereof extent permitted by Treasury Regulations Section 1.1031(k)-1(g)(6)), Section 5.02 of Rev. Proc. 2003-39 and (iiSection 5.1(e) with respect to any such Accounts hereafter arising, immediately, and hereof. Except in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior regard to the date hereof disbursement of Additional Subsidies for Non-Qualified Disbursements, Exchanger’s consent to a transfer or disbursement is intended solely to protect the integrity of Qualified Proceeds and (y) Additional Subsidies from disbursement in circumstances inconsistent with respect to any such Accounts hereafter arising, within 30 days the terms of such Grantor acquiring rights thereinthis Agreement.
Appears in 2 contracts
Sources: Master Exchange Agreement, Master Exchange Agreement (United Rentals North America Inc)
Accounts. (a) Each Grantor hereby covenants a. Lender authorizes Debtor to collect any and agrees that it all amounts owing on all Accounts subject to this agreement, and Debtor shall keep and maintain use its best efforts to effect the prompt collection of such Accounts. The Lender may, at its election, notify any debtor on any Account of the assignment thereof and effect collection of any Account directly from the debtor obligated thereon. Lender shall have full power to collect, compromise, endorse, sell or otherwise deal with the accounts or proceeds thereof in its own cost name or that of Debtor.
b. Debtor hereby irrevocably appoints Lender, or any person designated by Lender, its attorney in fact to receive, open and expense satisfactory and complete records of its Accounts, including records dispose of all payments received and all credits granted mail addressed to Debtor, to endorse the name of Debtor on such Accountsany notes, all merchandise returned and all acceptances, checks, drafts, money orders or other dealings therewith.
(b) Upon remittances, to endorse the occurrence name of an Event of Default that is continuingDebtor on any invoice, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall freight or express ▇▇▇▇ conspicuouslyor ▇▇▇▇ of lading, storage receipt, warehouse receipt or other instrument or document in respect to any account subject to this agreement, to sign the name of Debtor to drafts against account debtors, assignments or verifications of Accounts subject to this agreement and notices to account debtors, and to do all other acts and things necessary to carry out the intent of this Security Agreement. The authority granted Lender shall remain in full force and effect until all Accounts subject to this Security Agreement have been paid in full.
c. Upon request of Lender at any time, Debtor will notify such account debtors and will indicate on all ▇▇▇▇▇▇▇▇ to such account debtors that the Accounts are payable to Lender. Any proceeds of Accounts thereafter received by Debtor shall be turned over to Lender daily in the exact form in which they are received.
d. The Debtor will not, without the written consent of Lender, grant any extension of the time of payment of the Accounts, compromise, compound and settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than trade discounts specifically noted at the time of assignment.
e. The Debtor will deliver to Lender all original and other documents evidencing, and relating to, the sale and delivery of merchandise or the performance of labor or services which created the Accounts, including, but not limited to, all original orders, invoices and shipping receipts.
f. Lender shall have the right, at the Debtor's expense, to make test verifications of all Accounts in any manner and through any medium Lender considers advisable, and the Debtor agrees to furnish all such assistance and information as Lender may require in connection therewith.
g. The Debtor will furnish to Lender, at the Debtor's expense, the following reports: reconciliation of all Accounts; an aging of all Accounts; trial balances; a test verification of all Accounts; and such other reports and information relating to the Accounts as Lender may request. All reports shall be in form satisfactory to Lender and shall be furnished to Lender at such times as Lender may request.
h. The Debtor will stamp, in form and manner reasonably satisfactory to Lender, the Security Agent, all Chattel Paper, Instruments Debtor's accounts ledger and other items evidencing Accounts (other than any delivered books and records pertaining to the Security Agent as provided herein) Accounts with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts proceeds thereof have been directed assigned to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentLender.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 2 contracts
Sources: Loan Agreement (Pioneer Railcorp), Security Agreement (Pioneer Railcorp)
Accounts. (a) Each Grantor hereby covenants and agrees that it Except as otherwise provided in this Section 4.2, the Debtor shall keep and maintain continue to collect, at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accountsexpense, all merchandise returned amounts due or to become due to the Debtor with respect to Accounts and all other dealings therewith.
apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, the Debtor may take (b) Upon and, at Secured Party’s direction during the occurrence of an continuance or any Default or Event of Default that is continuingDefault, each Grantor hereby covenants and agrees that, at shall take) such action as the request Debtor or Secured Party may deem necessary or advisable to enforce collection of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Accounts. Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Party shall have the right at any time following after the occurrence and during the continuance of a Default or an Event of Default that is continuing to notify, or require any Grantor to notify, any to: (i) notify the Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts (or any other Person obligated thereon) of the Lien granted upon such Accounts in favor of Secured Party and to direct such Account Debtors and other Persons to make payment of all amounts due or to become due to any Grantor thereunder or otherwise render performance directly to Secured Party; (ii) exercise the Security Agent, (B) notify, or require a Grantor rights of the Debtor with respect to notify, each person maintaining a lockbox or similar arrangement to which the obligation of the Account Debtors under any Accounts have been directed Debtor to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly otherwise render performance to the Security Agent Debtor and with respect to any property that secures the obligations of the Account Debtor or any other Person obligated on the Collateral; and (Ciii) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in of such Accounts. After the same manner occurrence and to during the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments continuance of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, an Event of Default all amounts and Proceeds (including checks and other instruments) received by such Grantor in the Debtor with respect of to the Accounts, any Supporting Obligation or Collateral Support Accounts shall be received in trust for the benefit of the Security Agent hereunder and Secured Party, shall be segregated from other funds of the Debtor and shall be forthwith paid over to Secured Party in the same form as so received (with any necessary endorsement) to be held in any Deposit Account pursuant to Section 4.12 and applied pursuant to the Obligations in such Grantor and manner as the Grantor Secured Party may determine in its sole discretion. The Debtor shall not adjust, settle or compromise the amount or payment of any AccountsAccount, or release wholly or partly any Account Debtor or obligor thereofDebtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, releases credits and discounts in the ordinary course of its business and in amounts which are not material to the Debtor) without the prior written consent of the Security AgentSecured Party.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 2 contracts
Sources: Security Agreement (FNDS3000 Corp), Security Agreement (FNDS3000 Corp)
Accounts. 13.1 The terms of the Accounts are set out in the Account Agreement. Should the Account Bank cease to have the Account Bank Required Rating or fails to maintain an Account Bank Required Guarantee, the Account Bank shall notify the Issuer and the Security Trustee thereof in no less than 30 (athirty) Each Grantor hereby covenants and agrees that no more than thirty three (33) calendar days from the downgrade or from the date it shall keep and failed to obtain or maintain an Account Bank Required Guarantee (as the case may be), at its own cost (for the avoidance of doubt, this shall cover the legal fees as separately agreed in a side letter between, amongst others, the Issuer and expense satisfactory the Account Bank in accordance with Clause 15.2 of the Account Agreement) and complete records the Account Bank shall use all endeavours within its control during the remedy period which is sixty (60) calendar days to assist the Issuer to, and the Issuer shall: (i) transfer the Accounts held with it to an Eligible Collateral Bank or (ii) find an irrevocable and unconditional guarantor providing the Account Bank Required Guarantee, or (iii) (in the case of a rating from S&P only) take any other action in order to maintain the rating of the Notes or to restore the rating of the Notes. If none of the aforementioned measures are taken within the grace period referred to above, the Issuer shall terminate the Account Agreement, provided that such termination shall not take effect until the transition of the Issuer's banking arrangements has been completed. The outgoing Account Bank shall, in case of a termination, reimburse (on a pro rata basis) to the Issuer any up-front fees paid by the Issuer for periods after the date on which the substitution of the Account Bank is taking effect. In case of a termination as a result of the Account Bank failing to maintain an Account Bank Required Guarantee or if its Accountsshort- term or long-term ratings fall below the Account Bank Required Rating, the outgoing Account Bank shall reimburse the Issuer for the costs (including records legal costs and administration costs) or pay any costs incurred for the purpose of all payments received appointing a Successor Bank up to an amount of GBP 15,000 (the "Account Bank Replacement Cost"). For the avoidance of doubt, such Account Bank Replacement Cost shall cover any and all credits granted on such Accountsreplacement costs incurred in respect of a replacement of Elavon Financial Services DAC, all merchandise returned U.K. Branch as Account Bank and all other dealings therewithU.S. Bank Global Corporate Trust Limited as Cash Administrator.
(b) Upon 13.2 Should one of the occurrence Accounts be terminated either by the Account Bank or by the Issuer, the Issuer shall promptly inform the Security Trustee of such termination. The Issuer shall, together with the Security Trustee, open an Event of Default that is continuingaccount, each Grantor hereby covenants on conditions as close as possible to those previously received with the Successor Bank, which has at least the Account Bank Required Ratings or has an Account Bank Required Guarantee. The Issuer shall conclude a new Account Agreement with the Successor Bank as counterparty, and agrees that, at with the request consent of the Security AgentTrustee the new Account Agreement shall include a provision in which the Successor Bank undertakes to promptly notify the other contract parties of any drop in its rating.
13.3 Should one of the Accounts be opened with a Successor Bank, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Issuer or the Security AgentTrustee receives a notice pursuant to clause 13.1 above, all Chattel Paperthen within the remedy period which is sixty (60) calendar days after the Account Bank cease to have the Account Bank Required Rating or fails to maintain an Account Bank Required Guarantee, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) Trustee shall open the relevant Issuer account with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts another Successor Bank in accordance with the preceding sentenceprocedure laid out in clause 13.2 above on behalf of the Issuer and terminate the relevant Issuer account with the previous Successor Bank.
13.4 For the avoidance of doubt, in case one of the Accounts is at any payments of Accounts received by such Grantor shall be forthwith (time held with a Successor Bank, and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Issuer or the Security Trustee receives a notice pursuant to clause 13.1 above with regard to the Security Agent or Successor Bank, then the procedure laid out in blank, if required, in the Deposit Account, clauses 13.2 and until so turned over, all amounts and Proceeds (including checks and other instruments) received by 13.3 shall also apply for such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentSuccessor Bank.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 2 contracts
Sources: Trust Agreement, Trust Agreement
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due (subject to the immediately succeeding sentence), all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Collateral Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's historical collection practices. The costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Collateral Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will, commencing on the occurrence of date that is 60 days after the Effective Date, (i) at all times cause such account to be a Controlled Deposit Account and (ii) cause the relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto and other similar exceptions reasonably acceptable to the Collateral Agent). The Collateral Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Lien Grantor; PROVIDED that, if an Event of Default that is shall have occurred and be continuing, each the Collateral Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Collateral Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Collateral Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Collateral Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby Borrower represents, warrants and covenants that there are and agrees that it shall keep be no deposit, securities or similar accounts (other than the Accounts and maintain the Operating Account) maintained by Borrower or any other Person (other than Property Manager and Existing Tenant for their own accounts) with respect to the Project. Borrower shall promptly (i) deposit or cause to be deposited all Operating Revenues into the Lockbox Account and (ii) send a notice, substantially in the form of Exhibit B, to all tenants now or hereafter occupying space at its own cost the Project directing them to pay all sums due under their respective Leases (including, without limitation, rents and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithany lease termination payments) into the Lockbox Account.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and Borrower agrees that, at until the request Obligations are indefeasibly satisfied in full, neither Borrower nor any other Person shall (i) close the Lockbox Account, (ii) open any accounts for the operations of the Security AgentProject except for the Accounts, it shall the Operating Account, and any other accounts approved by Lender in its sole discretion (other than accounts maintained by Property Manager and/or Existing Tenant for their own accounts) or (iii) rescind, withdraw or change the directions sent pursuant to Section 8.19
(a) without ▇▇▇▇ conspicuously▇▇▇’s prior written consent. The foregoing shall not prohibit Borrower from opening, in form maintaining and manner reasonably satisfactory utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower to the Security Agentextent permitted under this Agreement and the other Loan Documents and provided that, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered prior to the Security Agent use of such separate accounts, Borrower pledges and grants to Lender a security interest in all such funds and accounts as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent additional security for the benefit of the Secured Parties Loan and that the Security Agent has enters into a Security Interest thereincontrol agreement(s) evidencing and/or securing such pledge as Lender shall require.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing Borrower hereby pledges and grants to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest Lender a security interest in the Lockbox Account, the other Accounts and any Supporting Obligation in all such funds and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent accounts as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust additional security for the benefit of the Security Agent hereunder Obligations and shall be segregated from other funds of enter into such Grantor and the Grantor control agreement(s) evidencing and/or securing such pledge as Lender shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentrequire.
(d) With respect to Borrower acknowledges that if Depositary Bank sets off and/or charges the Lockbox Account for any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byfees or expenses, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent within fifteen (or its agent or designee15) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect set off or charge, Borrower shall deposit, or shall cause to any Accounts constituting Collateral in excess be deposited, into the Lockbox Account an amount equal to such set off or charge.
(e) During a Cash Sweep Period or Event of $1,000,000 that constitutes “Default, Borrower shall provide to Lender electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior access to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAccounts.
Appears in 1 contract
Accounts. (a) Each If and so long as any ABL Credit Agreement is in effect and contains ABL Cash Management Requirements, each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithas follows.
(bi) From and after the Issue Date, each Grantor agrees to deposit all Daily Receipts into the DDAs (as defined in the ABL Credit Agreement) on a daily basis.
(ii) From and after the Issue Date, the Grantors agree to transfer, or cause to be transferred, all Cash Receipts (as defined in the ABL Credit Agreement) on deposit in any DDA (except, such amounts necessary (i) for the payment of routine bank service fees and (ii) to reconcile deposit balances) to a Blocked Account. Such transfers shall occur no less than three (3) times a week.
(iii) Except upon the occurrence and during the continuance of an Event of Default, the Company may instruct each bank or other financial institution at which the Grantors maintain a Blocked Account (each, a “Blocked Account Bank”) as to the application of any Cash Receipts contained in any Blocked Account if and so long as such application and use does not violate, or result in a Default under, the Indenture and the other Note Documents.
(iv) Upon the occurrence and during the continuance of an Event of Default, the Company may continue to instruct each Blocked Account Bank as to the application of any Cash Receipts until and unless the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian shall notify the Company and the Grantors with respect to each Blocked Account that such account shall be closed and/or under the exclusive dominion and control of the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian with funds therein held subject to the rights of the Collateral Agent hereunder and under the other Note Documents. During the continuance of an Event of Default that is continuingand upon and after such notice, each no Grantor hereby covenants and agrees that, at shall have any right or power to withdraw any funds from any Blocked Account without the request prior written consent of the Security Collateral Agent or its agent (including the ABL Collateral Agent), it nominee or custodian.
(v) All taxes payable on the income of the cash and cash equivalents upon any disposition thereof shall ▇▇▇▇ conspicuouslybe paid by Grantors and the Collateral Agent shall have no obligations with respect thereto.
(vi) In the event that a Grantor directly receives any remittances on Receivables, in form and manner reasonably satisfactory notwithstanding the arrangements for payment directly into the Blocked Accounts pursuant to the Security AgentSection 5.02, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent remittances shall be held for the benefit of the Collateral Agent and the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor Grantor, subject to the Security Interest granted hereby, and the such Grantor shall not adjustcause such remittances and payments to be deposited into a Blocked Account as soon as practicable after such Grantor’s receipt thereof. After the occurrence of an Event of Default, settle upon the notice by the Collateral Agent or compromise its agent (including the amount ABL Collateral Agent), nominee or payment of any Accountscustodian to the Grantors, or release wholly or partly any such remittances and payments shall be deposited into the Agent’s Account Debtor or obligor as soon as practicable after such Grantor’s receipt thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(dvii) With respect All payments by any Grantor into any Blocked Account or the Agent’s Account pursuant to this Section 5.01 or Section 5.02, whether in the form of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, shall be deposited in the relevant Blocked Account or Agent’s Account in precisely the form in which received (but with any Accounts constituting endorsements of such Grantor necessary for deposit or collection), and until they are so deposited such payments shall be held in trust by such Grantor for the benefit of the Collateral Agent subject to the Security Interest granted hereby.
(b) If ABL Cash Management Requirements are not in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Papereffect, each Grantor shall cause each originally executed copy thereof deposit all Daily Receipts on a daily basis, and shall instruct all Account Debtors to be delivered make payment, into a Deposit Account subject to a Blocked Account Agreement or a DACA (or if and to the Security Agent extent permitted by Section 4.16(e)(ii) of this Agreement into a De Minimis Deposit Account), and all amounts received by the Grantors in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash be deposited on a daily basis in a Deposit Account subject to a Blocked Account Agreement or a DACA (or its agent or designee) appropriately indorsed if and to the Security Agent or indorsed in blank: (iextent permitted by Section 4.16(e)(ii) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinthis Agreement into a De Minimis Deposit Account).
Appears in 1 contract
Sources: Security Agreement (Great Atlantic & Pacific Tea Co Inc)
Accounts. The following provisions shall apply to all accounts included in the Collateral and all accounts arising from the sale of inventory included in the Collateral:
(a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received account and all credits granted on such Accounts, papers and documents relating thereto are genuine and in all merchandise returned and all other dealings therewith.
respects what they purport to be; (b) Upon each account is valid and subsisting and arises out of a bona fide sale of goods sold and delivered to, or out of and for services theretofore actually rendered by Debtor to, the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at account debtor named in the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and account or other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
bona fide transaction; (c) The Security Agent the amount of the account represented as owing is the correct amount actually and unconditionally owing except for normal cash discounts and is not subject to any setoffs, credits, defenses, or countercharges; and (d) Debtor is the owner thereof free and clear of any charges, liens, security interests, adverse claims, and encumbrances of any and every nature whatsoever. Lender shall have the right at in its own name or in the name of the Debtor, whether before or after default, to require Debtor forthwith to transmit all proceeds of collection of accounts to Lender; to notify any time following and all account debtors to make payments of the occurrence of an Event of Default that is continuing accounts directly to notifyLender; to demand, or require any Grantor to notifycollect, receive, receipt for, sue for, compound, and give acquittal for, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due o▇ ▇o become due on the accounts and to endorse the name of the Debtor on all commercial paper given in payment or part payment thereof; and in Lender's discretion, to file any claim or take any other action or proceeding that Lender may deem necessary or appropriate to protect and preserve and realize upon the accounts and related Collateral. Unless and until Lender elects to collect accounts, and the privilege of Debtor to collect accounts is revoked by Lender in writing, Debtor shall continue to collect accounts, account for same to Lender, shall not commingle the proceeds of collection of accounts with any funds of the Debtor, and shall deposit such proceeds in an account with Lender. In order to assure collection of accounts in which Lender has an interest hereunder, Lender may notify the post office authorities to change the address for delivery of mail addressed to Debtor to such address as Lender may designate, open and dispose of such mail, and receive the collections of accounts included therewith. Lender shall have no duty or obligation whatsoever to collect any account or to become due take any other action or preserve or protect the Collateral; however, should Lender elect to collect any Grantor thereunder directly account or take possession of the Collateral, Debtor releases Lender from any claim or claims for loss or damage arising from any act or omission in connection therewith, and costs of collection incurred by Lender shall be an obligation secured hereby and constitute a portion of the Obligations. Upon request by Lender, whether before or after default, Debtor shall take such action and execute and deliver such documents as Lender may reasonably request in order to identify, confirm, mark, segregate, and assign accounts and to evidence Lender's intere▇▇ ▇n same. Without limiting the foregoing, Debtor, upon request, agrees to assign accounts to Lender, identify and mark accounts as being subject to the Security Agentsecurity interest (or pledge o▇ ▇▇signment as applicable) granted hereby, (B) notifymark Debtor's books and records to reflect such assignments, and for▇▇▇▇th to transmit to Lender in the form as received by Debtor any and all proceeds of collection of such accounts. Debtor will deliver to Lender, prior to the 15th day of each month, or require with such other frequency as Lender may request, a Grantor written report in form and content satisfactory to notifyLender, each person maintaining showing a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks listing and aging of accounts and such other payment items information as Lender may request from time to time sent to or deposited in such lockbox or other arrangement directly to time. Debtor shall immediately notify Lender of the Security Agent and (C) enforce, at the expense assertion by any account debtor of any Grantorsetoff, collection of defense, or claim regarding an account or any such Accounts and other matter adversely affecting an account. Returned or repossessed goods arising from or relating to adjust, settle or compromise any accounts included within the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blankCollateral shall, if requiredrequested by Lender, in the Deposit Accountbe held separate and apart from any other property. Debtor, and until so turned overon request by Lender, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accountsbut not less than weekly even though no request has been made, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect report to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) Lender identifying information with respect to any such Accounts goods relating to accounts included in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” transactions under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinthis Agreement.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Servicer shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3(a). If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the Servicer shall keep transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account plus, solely during the Revolving Period, the undrawn portion of the Commitments, is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and maintain at its own cost a certification that the conditions to fund such draw are satisfied, and expense satisfactory the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of the date of such receipt (and complete records after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of its Accountssuch shortfall, including records in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of all payments received such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and all credits granted on such Accounts, all merchandise returned and all other dealings therewith(b) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuouslyas directed by the Servicer in writing (or, in form and manner reasonably satisfactory if the Servicer fails to the Security Agentprovide such direction, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and invested in any event within two Business Days) deposited standing investment separately identified by such Grantor the Servicer and described in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
clause (d) With respect to any Accounts constituting Collateral of the definition of Permitted Investments), in excess of $5,000,000 Permitted Investments that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Collection Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Servicer, the Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days of such Grantor acquiring Account, except to the extent explicitly set forth herein (including the withdrawal rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of for the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined Unfunded Exposure Account set forth in Section 9-105 8.1(a)). Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on Principal Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base, the Maximum Availability and the Minimum Equity Test.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Accounts. Each Borrower covenants, agrees, represents, and warrants, as to itself, as follows:
(a) Each Grantor hereby covenants With respect to such Borrower's Accounts: (i) each existing Account represents, and agrees that it shall keep each future Account will represent, a BONA FIDE sale or lease and maintain at its own cost delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and expense satisfactory each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms then in effect or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and complete records disclosed to the Agent and the Lenders as required by this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of its Accounts, including records an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower described in each invoice will have been performed.
(b) Upon Such Borrower shall not re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account outside the occurrence ordinary course of business. If such Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Such Borrower shall have not, without the right at Agent's prior written consent, accept any time following note or other instrument (except a check or other instrument for the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor other than Accounts which (i) do not exceed $1,000,000 individually and (ii) at the time of accepting such note or other instrument are not less than ninety (90) days past due from the date of the Security Agent’s Security Interest in original invoice therefor. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Borrower will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received endorsed by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Borrower to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accountsdemand, or release wholly or partly any Account Debtor or obligor thereofnotice of protest with respect thereto, or allow any credit or discount such Borrower shall remain liable thereon without the prior written consent of the Security Agentuntil such instrument is paid in full.
(d) With respect to any Accounts constituting Collateral in excess Such Borrower shall notify the Agent promptly of $5,000,000 that is evidenced byall offsets, deductions, defenses, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral counterclaims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the UCCAgent or any Lender. No discount, each Grantor credit, or allowance shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect be granted to any such Accounts Account Debtor without the Agent's prior written consent, except for discounts, credits, and allowances made or given in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days ordinary course of such Grantor acquiring rights therein.Borrower's business when no Event of
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall a. ▇▇▇▇▇▇ conspicuouslyauthorizes Debtor to collect any and all amounts owing on all Accounts subject to this agreement, and Debtor shall use its best efforts to effect the prompt collection of such Accounts. The Lender may, at its election, notify any debtor on any Account of the assignment thereof and effect collection of any Account directly from the debtor obligated thereon. Lender shall have full power to collect, compromise, endorse, sell or otherwise deal with the accounts or proceeds thereof in its own name or that of Debtor.
b. Debtor hereby irrevocably appoints Lender, or any person designated by Lender, its attorney in fact to receive, open and dispose of all mail addressed to Debtor, to endorse the name of Debtor on any notes, acceptances, checks, drafts, money orders or other remittances, to endorse the name of Debtor on any invoice, freight or express bill or bill of lading, storage receipt, warehouse receipt or other instrument or document in respect to any account subject to this agreement, to sign the name of ▇▇▇▇▇▇ to drafts against account debtors, assignments or verifications of Accounts subject to this agreement and notices to account debtors, and to do all other acts and things necessary to carry out the intent of this Security Agreement. The authority granted Lender shall remain in full force and effect until all Accounts subject to this Security Agreement have been paid in full.
c. Upon request of Lender at any time, ▇▇▇▇▇▇ will notify such account debtors and will indicate on all ▇▇▇▇▇▇▇▇ to such account debtors that the Accounts are payable to Lender. Any proceeds of Accounts thereafter received by Debtor shall be turned over to Lender daily in the exact form in which they are received.
d. The Debtor will not, without the written consent of Lender, grant any extension of the time of payment of the Accounts, compromise, compound and settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than trade discounts specifically noted at the time of assignment.
e. The Debtor will deliver to Lender all original and other documents evidencing, and relating to, the sale and delivery of merchandise or the performance of labor or services which created the Accounts, including, but not limited to, all original orders, invoices and shipping receipts.
f. Lender shall have the right, at the Debtor's expense, to make test verifications of all Accounts in any manner and through any medium Lender considers advisable, and the Debtor agrees to furnish all such assistance and information as Lender may require in connection therewith.
g. The Debtor will furnish to Lender, at the Debtor's expense, the following reports: reconciliation of all Accounts; an aging of all Accounts; trial balances; a test verification of all Accounts; and such other reports and information relating to the Accounts as Lender may request. All reports shall be in form satisfactory to Lender and shall be furnished to Lender at such times as Lender may request.
h. The Debtor will stamp, in form and manner reasonably satisfactory to Lender, the Security Agent, all Chattel Paper, Instruments Debtor's accounts ledger and other items evidencing Accounts (other than any delivered books and records pertaining to the Security Agent as provided herein) Accounts with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts proceeds thereof have been directed assigned to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentLender.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor Borrower and the Guarantor (but as to itself -------- only) hereby covenants represents and warrants to the Agent and each of the Lenders and agrees that it shall keep with the Agent and maintain at its own cost each of the Lenders that: (i) each existing Account represents, and expense satisfactory each future Account will represent, a bona fide sale or lease and complete records delivery of its goods by such Borrower or the Guarantor or rendition of services by such Borrower or the Guarantor in the ordinary course of such Borrower's or the Guarantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without, to the knowledge of each Borrower and the Guarantor, offset, deduction, defence, rebate, contra claim, set-off or counterclaim save as have been deducted for the purposes of calculating Eligible Accounts; (iii) no payment will be received with respect to any Account, including records and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by such Borrower or the Guarantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in each invoice will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower or the Guarantor described in each invoice will have been performed.
(b) Upon No Borrower or Guarantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's or the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory Guarantor's business as conducted prior to the Security Closing Date or extend or modify any Account unless permitted by the Agent. If any Borrower or Guarantor obtains current actual knowledge of any matter affecting any material Account in any materially adverse manner, all Chattel Paperincluding information regarding the Account Debtor's creditworthiness, Instruments and other items evidencing Accounts (other than any delivered to such Borrower or Guarantor will promptly so advise the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAgent.
(c) The Security Agent No Borrower or Guarantor shall have accept any note or other instrument (except a cheque for the right at any time following the occurrence payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done's written consent. If the Security Agent notifies a Grantor that it has elected to collect the Accounts any Borrower or Guarantor accepts, in accordance with the preceding sentence, any payments of Accounts received by note or other instrument, except a cheque payable immediately, such Grantor note or instrument shall be forthwith (considered as evidence of the Account and in any event within two Business Days) deposited by not payment thereof, and such Grantor in the exact form received, duly indorsed by Borrower or Guarantor will promptly upon request deliver such Grantor note or instrument to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect its applicable Lender appropriately endorsed. Regardless of the Accountsform of presentment, any Supporting Obligation demand, notice of dishonour, protest and notice of protest with respect thereto, such Borrower or Collateral Support shall be received the Guarantor, as applicable, will remain liable thereon until such note or instrument is paid in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect Each Borrower and the Guarantor (as to itself only) shall notify the Agent promptly of all disputes and claims with Account Debtors and settle or adjust them at no expense to the Agent and/or Lenders, but no discount, credit or allowance shall be granted to any Accounts constituting Collateral Account Debtor without the Agent's consent, except for discounts, credits and allowances made or given in the ordinary course of such Borrower's or the Guarantor's business when no Event of Default exists hereunder. Each Borrower and the Guarantor (as to itself only) shall notify the Agent of each credit memoranda in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered 100,000 as soon as issued and will provide to the Security Agent copies of such credit memoranda upon request by the Agent and a list of all credit memoranda on a weekly basis (with copies upon request by the Agent). The Agent or its agent the Lenders may, at all times when an Event of Default exists hereunder, settle or designee) appropriately indorsed adjust disputes and claims directly with customers or Account Debtors for amounts and upon terms which the Agent or the Lenders considers advisable and, in all cases, the Lenders will credit the applicable Borrower's loan account with only the amounts received by the Agent in payment of any Accounts. Without limiting the generality of the foregoing, the Agent or the Lenders may, under such circumstances, demand, ▇▇▇ for, enforce, recover and receive payment of the Accounts and compound, compromise, grant extensions, take and give up securities, accept compositions and grant releases and discharges with respect thereto, the whole without notice to the Security Borrowers and without any liability for any loss resulting therefrom. The Agent and the Lenders will not be obliged to inform the Borrowers or indorsed the Guarantor of any irregularity in blankthe payment of any of the Accounts.
(e) If an Account Debtor returns any Inventory to any Borrower or the Guarantor when no Event of Default exists, then such Borrower or the Guarantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. Each Borrower and the Guarantor (as to itself only) shall immediately report to the Agent any return involving an amount in excess of $100,000. In the event any Account Debtor returns Inventory to any Borrower or the Guarantor when an Event of Default exists, such Borrower or the Guarantor shall: (i) with respect to any such Accounts hold the returned Inventory in existence on trust for the date hereof, on or prior to the date hereof and Agent; (ii) segregate all returned Inventory from all of its other Property; (iii) dispose of the returned Inventory solely according to the Agent's or its applicable Lender's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's or its applicable Lender's prior written consent. All returned Inventory shall remain subject to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinInterest.
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Accounts. (a) Each Grantor Borrower hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Borrower's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and disclosed to the Agent and the Lenders pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower described in each invoice will have been performed.
(b) Upon No Borrower shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account. If any Borrower becomes aware of any matter adversely affecting the occurrence collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $100,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent No Borrower shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in 's written consent. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Borrower will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received endorsed by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Borrower to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation or Collateral Support demand, notice of protest with respect thereto, such Borrower shall be received remain liable thereon until such instrument is paid in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Borrower shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by100,000 with any Account Debtor, and agrees to settle, contest, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered adjust such dispute or claim at no expense to the Security Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of such Borrower's business when no Event of Default exists hereunder. Each Borrower shall send the Agent a copy of each credit memorandum in excess of $100,000 as soon as issued. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Borrowers' Loan Account with the net amounts received by the Agent in payment of any Accounts.
(or its agent or designeee) appropriately indorsed If an Account Debtor returns any Inventory to any Borrower when no Event of Default exists, then such Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Account Debtor in the appropriate amount. Each Borrower shall immediately report to the Agent or indorsed any return involving an amount in blankexcess of $100,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to any Borrower when an Event of Default exists, such Borrower, upon the request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.returned Inventory
Appears in 1 contract
Accounts. (a1) Each Grantor hereby covenants FDS Bank or Prime is the sole owner of and agrees that it shall keep has good and maintain at its own cost and expense satisfactory and complete records of its marketable title to the FDS Accounts, including records the Gross Receivables on the FDS Accounts and the Prime Securitization Assets (subject in each case to the rights, claims and interests arising under the Securitization Documents). Upon the First Closing, subject to the filing of appropriate financing statements and all required continuations, amendments and replacements thereof, all right, title and interest in and to the FDS Accounts, the Gross Receivables on the FDS Accounts, and the Prime Securitization Assets shall vest or be vested in the Purchaser free and clear of all payments received Liens other than Permissible Liens (and all credits granted on such Accountssubject in each case to the rights, all merchandise returned claims and all other dealings therewithinterests arising under the Securitization Documents).
(b2) Upon As of the occurrence Second Closing, FDS Bank shall be the sole owner of an Event and have good and marketable title to the GE/Macy’s Accounts and the Gross Receivables on the GE/Macy’s Accounts. This Agreement shall, following the Second Closing Date, and subject to the filing of Default that is continuingappropriate financing statements and all required continuations, amendments and replacements thereof, vest in the Purchaser all right, title and interest in and to the GE/Macy’s Accounts and the Gross Receivables on the GE/Macy’s Accounts, free and clear of all Liens other than Permissible Liens.
(3) To the Sellers’ Knowledge, each Grantor hereby covenants Account Agreement (other than any Account Agreement with respect to any Charged Off Account) is a valid and agrees thatlegally binding obligation of each obligor thereunder, at including any cosigner, guarantor or surety, and is enforceable against such obligors in accordance with its terms, subject to (i) possible claims and defenses on disputed card transactions asserted by a Cardholder, (ii) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other laws relating to or affecting creditors’ rights generally and the request effect of general equitable principles, and (iii) the Servicemembers Civil Relief Act.
(4) Since January 29, 2005, except for changes after the date hereof permitted by Section 6.2, (i) the Sellers have not effected any material change in operating policies and procedures of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory Business relating to the Security Agentmaintenance of, all Chattel Paperand collection policies with respect to, Instruments and other items evidencing the Accounts (other than any delivered changes permitted to be made by GE Bank pursuant to the Security Agent as provided hereinGE/Macy’s Program Agreement) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) the Business has been operated in all material respects in compliance with respect the policies and procedures of the Sellers and GE Bank (other than changes permitted to any such Accounts hereafter arising, immediatelybe made by GE Bank pursuant to the GE/Macy’s Program Agreement).
(5) Each Account complies with, and was solicited and opened in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral accordance with, in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 all material respects the applicable rules and regulations of the UCCapplicable Card Association.
(6) Each Account complies in all material respects with the applicable Account Agreement.
(7) All Account applications have been taken and evaluated and applicants notified in a manner that complied with all applicable Requirements of Law.
(8) All Accounts have been solicited, originated, maintained and serviced in compliance with all applicable Requirements of Law.
(9) All disclosures made in connection with the Accounts complied in all material respects with all applicable Requirements of Law.
(10) To the Sellers’ Knowledge, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts Gross Receivables arises from or in connection with a bona fide sale or loan transaction (x) with including any amounts in respect to any such Accounts in existence of finance charges, annual fees and other charges and fees assessed on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAccounts).
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Macy's, Inc.)
Accounts. (a) Lessee agrees to deposit all revenues received by Lessee with respect to the Equipment into a demand deposit account (the “Control Account”) to be established by Lessee. In addition, on the Lease Commencement Date, Lessee shall establish a separate interest bearing account (the “Minimum Monthly Reserve Account”). The Minimum Monthly Reserve Account and the Control Account are together referred to as the “Accounts”. Any and all interest accruing on invested amounts held in any of the Accounts shall be for the benefit of and shall be deemed the property of Lessee. Each Grantor hereby covenants of the Accounts may be at a financial institution that is an affiliate of Lessor. The cost of establishing and maintaining the Accounts shall be borne by Lessee. Lessee shall instruct each counterparty to each Project Document to make all payments to which Lessee or any of Lessee’s affiliates is entitled under each such Project Document to the Control Account and to provide evidence of such instruction to Lessor, and Lessee agrees to enforce its right, or to cause its affiliates to enforce their rights, to designate the Control Account as the place to which such payments should be made in the event that it for any reason any such counterparty fails to make payment to such account. Lessee shall, on the Lease Commencement Date, fund the Minimum Monthly Reserve Account with an amount equal to the “Minimum Monthly Reserve Fund” amount set forth in Exhibit A (the “Minimum Balance Requirement”), and Lessee shall keep thereafter maintain a minimum amount in the Minimum Monthly Reserve Account equal to the amount set forth in Exhibit A. Lessor shall have sole signatory authority over the Accounts. As collateral security for the prompt payment and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records performance of all payments received obligations under this Agreement, Lessee hereby grants to Lessor a first priority security interest in, lien upon and pledge of the Control Account and the Minimum Monthly Reserve Account. Lessee shall take all credits granted on such Accounts, all merchandise returned and all other dealings therewithaction as may be reasonably requested by Lessor to maintain Lessor’s first priority security interest in each such account.
(b) Upon If the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at amount in the request Minimum Monthly Reserve Account falls below eighty percent (80%) of the Security AgentMinimum Balance Requirement at any time, it Lessee shall ▇▇▇▇ conspicuously, promptly replenish the Minimum Monthly Reserve Account such that the Minimum Balance Requirement is met and in form and manner reasonably satisfactory addition shall provide to Lessor information regarding the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit cause of the Secured Parties shortfalls in the Control Account and/or Minimum Monthly Reserve Account, the steps being taken to remedy the situation giving rise to such shortfalls, and that the Security Agent has a Security Interest thereinsuch other information as Lessor shall reasonably request (which information shall not include technical proprietary information).
(c) The Security Agent shall have On the right at any time following the occurrence of an Event of Default date that is continuing ten (10) business days prior to notifyeach date on which a payment of Rent is due (each, or require any Grantor to notifya “Rent Payment Date”), any Account Debtor of Lessor shall determine the Security Agent’s Security Interest amounts on deposit in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Control Account, and until so turned overif there are insufficient funds to make the transfers contemplated in clauses first and second of Section 11(d) in full on the next occurring Rent Payment Date, all amounts Lessor shall withdraw from the Minimum Monthly Reserve Account an amount equal to such deficiency and Proceeds (including checks and other instruments) received by deposit such Grantor in respect of amount into the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentControl Account.
(d) With respect On each Rent Payment Date under this Lease, Lessor shall transfer funds from the Control Account in the following order of priority, in each case, to the extent funds are available in the Control Account: First, if any amount (other than Rent due and payable on such Rent Payment Date) is due and owing on such Rent Payment Date to Lessor hereunder (including, for the avoidance of doubt, any delinquent Rent due and owing at such time) or under any other Lease Document, Lessor shall transfer such amount to Lessor. Second, Lessor shall transfer the amount of all Rent due and owing on such Rent Payment Date to Lessor. Third, if the Minimum Balance Requirement is not met as of such Rent Payment Date, Lessor shall transfer to the Minimum Monthly Reserve Account the amount necessary to meet the Minimum Balance Requirement. Fourth, any obligation in the nature of operating expenses of the Project at the instruction of Lessee and as approved by Lessor. Fifth, provided that no Default has occurred and is continuing, Lessor shall transfer to Lessee any amounts remaining in the Control Account as instructed by Lessee.
(e) [Intentionally omitted]
(f) At the end of the Lease Term, and after all amounts payable to Lessor under the Lease Documents have indefeasibly been paid in full, all amounts remaining in the Accounts constituting Collateral shall be paid to Lessee other than amounts necessary to repair any damage to the Equipment for which Lessee is liable hereunder or to the Site as a result of Lessee’s activity on the Site for which Lessor is liable, which amounts (or reasonably estimated amounts if the specific amounts are not then known to Lessor) may be retained by Lessor. In the event the estimated amount retained by Lessor is greater than the actual amount necessary for such repairs, Lessor shall so notify Lessee promptly following such determination and shall deliver to Lessee an amount equal to such excess. Notwithstanding the foregoing, at the end of the Lease Term, Lessee shall have no obligation to repair or replace (or reimburse Lessor for any repair or replacement expenses related to) ordinary wear and tear, any module performing in excess line with the age and expected degradation curve of $5,000,000 that is evidenced bythe Equipment, or constitutesany part performing with the performance, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to reliability and safety in line with the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 age of the UCCEquipment and of a type, each Grantor shall grade, quality and condition comporting with Prudent Industry Practices.
(g) Lessor may cause a collateral agent to take any or all steps necessary actions Lessor is permitted to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to take under this Agreement or any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinother Lease Document.
Appears in 1 contract
Accounts. (a) Each Grantor The Borrowers hereby covenants jointly and agrees that it shall keep severally represent and maintain at its own cost warrant to the Lender and expense satisfactory agree with the Lender that: (i) each existing Account represents, and complete records each future Account will represent, a bona fide sale or lease and delivery of goods by the Borrowers, or rendition of services by the Borrowers, in the ordinary course of the Borrowers' business; (ii) each existing Account of the Borrowers is, and each future Account of the Borrowers will be a valid, binding and enforceable obligation of its Accountsrelevant Account Debtor for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof 44, including records delivered to the Lender, without offset, deduction, defense, or counterclaim; (iii) no payment will be received with respect to any Account of the Borrowers, and no credit, discount, or extension, or agreement therefor will be granted on any Account of the Borrowers, except as reported to the Lender in accordance with this Agreement; (iv) each copy of an invoice delivered to the Lender by the Borrowers will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of the Borrowers described in any invoice will have been performed.
(b) Upon The Borrowers shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence relevant Borrower's business or extend or modify any Account. If a Borrower becomes aware of an Event any matter affecting any Account of Default that is continuingeither Borrower, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinLender.
(c) The Security Agent Borrowers shall have not accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor (other than an ABN AMRO Receivable) of either Borrower without the Security Agent’s Security Interest in Lender's written consent. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly Lender consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts note or other instrument, it shall be considered as evidence of the such Account and to adjust, settle or compromise the amount or not payment thereof, in and the same manner and relevant Borrower will promptly deliver such note or instrument to the same extent as such Grantor might have doneLender appropriately endorsed. If Regardless of the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceform of presentment, any payments demand, notice of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form receiveddishonor, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Accountprotest, and notice of protest with respect thereto, the Borrowers will remain liable thereon until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor note or instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect The Borrowers shall notify the Lender promptly of all disputes and claims with any of their Account Debtors and settle or adjust them at no expense to the Lender, but no discount, credit or allowance shall be granted to any Accounts constituting Collateral such Account Debtor without the Lender's consent, except for discounts, credits and allowances made or given in the ordinary course of the relevant Borrower's business when no Event of Default exists hereunder. The Borrowers shall send the Lender a copy of each credit memoranda in excess of $5,000,000 that is evidenced by25,000 as soon as issued and copies of all credit memorandum on a weekly basis. The Lender may at all times when an Event of Default exists hereunder settle or adjust disputes and claims directly with customers or Account Debtors of the Borrowers for amounts and upon terms which the Lender considers advisable and, or constitutesin all cases, Chattel Paperthe Lender will credit the Borrower's loan accounts with only the net amounts received by the Lender in payment of any Accounts of the Borrowers.
(e) If an Account Debtor of either Borrower returns any Inventory to a Borrower when no Event of Default exists, each Grantor then the relevant Borrower shall cause each originally executed copy thereof promptly determine the reason for such return and shall issue a credit memorandum to be delivered such Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Security Agent (or its agent or designee) appropriately indorsed Lender any return involving an amount in excess of $25,000 and shall report all returns to the Security Agent or indorsed in blankLender on a weekly basis. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor of a Borrower returns Inventory to such Borrower when an Event of Default exists, such Borrower shall: (i) with respect to any such Accounts hold the returned Inventory in existence on trust for the date hereof, on or prior to the date hereof and Lender; (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days segregate all returned Inventory from all of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess its other Property; (iii) dispose of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.the
Appears in 1 contract
Sources: Loan and Security Agreement (California Microwave Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it The Borrower shall keep and maintain at its own cost and expense satisfactory accurate and complete records of its Accounts, including records of all payments received and all credits granted collections thereon, and shall submit to the Administrative Agent sales, collection, reconciliation and other reports in form satisfactory to the Administrative Agent, on such Accountsperiodic basis as Agent may reasonably request. If Accounts in an aggregate face amount of $250,000 or more cease to be Eligible Accounts (other than due to collection), all merchandise returned the Borrower shall notify Agent of such occurrence promptly (and all other dealings therewithin any event within one Business Day) after any Loan Party has knowledge thereof.
(b) Upon If an Account of the occurrence of Borrower includes a charge for any Taxes and an Event of Default that has occurred and is continuing, each Grantor hereby covenants and agrees thatthe Administrative Agent is authorized, at in its discretion, to pay the request amount thereof to the proper taxing authority for the account of the Security AgentBorrower and to charge the Borrower therefor; provided, it that neither Agent nor Lenders shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory be liable for any Taxes that may be due from the Borrower or relate to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinCollateral.
(c) The Security Whether or not a Default or Event of Default exists, the Administrative Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereoftime, in the same manner and name of Agent, any designee of the Administrative Agent or the Borrower, to verify the same extent as such Grantor might have donevalidity, amount or any other matter relating to any Accounts of the Borrower by mail, telephone or otherwise. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance The Borrower shall cooperate fully with the preceding sentence, Administrative Agent in an effort to facilitate and promptly conclude any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentverification process.
(d) With respect The Borrower shall maintain Dominion Accounts pursuant to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, lockbox or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered other arrangements acceptable to the Security Agent Administrative Agent. The Borrower shall obtain an agreement (or its agent or designee) appropriately indorsed in form and substance satisfactory to the Security Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account (which may be exercised by the Administrative Agent only during a Dominion Trigger Period and subject to the terms of the Intercreditor Agreement) requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or indorsed bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Dominion Trigger Period, require immediate transfer of all funds in blank: (i) such account to a Dominion Account maintained with Bank of America. The Administrative Agent and Lenders assume no responsibility to the Borrower for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any such Payment Items accepted by any bank.
(e) The Borrower shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts in existence on or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If the date hereof, on Borrower or prior to the date hereof and (ii) any other Loan Party receives cash or Payment Items with respect to any such Collateral, it shall hold same in trust for the Administrative Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account.
(f) During any Dominion Trigger Period, the ledger balance in the main Dominion Account(s) as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day (other than Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements) at the beginning of the next Business Day. Any resulting credit balance shall not accrue interest in favor of the Borrower and shall be made available to the Borrower as long as no Default or Event of Default exists.
(g) No later than February 1, 2022, the Loan Parties shall provide evidence to the Administrative Agent that the Loan Parties have restructured its Accounts hereafter arisingto establish a Designated Disbursement Account and have discontinued use of Dominion Accounts as disbursement accounts.
(h) During any Dominion Trigger Period, immediately, and Borrower may request a Revolving Borrowing or Swingline Borrowing in any event within ten days an aggregate principal amount not to exceed the Multi-Day Borrowing Amount be deposited into the Designated Disbursement Account for application by the Loan Parties to ordinary course business expenses payable on the day of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral deposit or within the next three (3) Business Days so long as all expenses included in excess calculating such Multi-Day Borrowing Amount do not materially deviate or depart from the projected uses of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior cash most recently delivered to the date hereof Administrative Agent in accordance with Section 7.11 and (yPart II(a) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinSchedule 7.11.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Borrower shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent for application by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer, the Facility Agent and each Agent), then the Borrower shall keep cause the Servicer to transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower or at the direction of the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, the Borrower shall cause the Servicer to forward any draw request made by an Obligor under a Variable Funding Asset, along with wiring instructions for the applicable Obligor, to the Collateral Agent (with a copy to the Facility Agent and maintain at its own cost each Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and expense satisfactory a certification that the conditions to fund such draw are satisfied, and complete records the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of its Accountsthe Revolving Period, including records if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset and, as of all payments received the date of such receipt (and all credits granted after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of such Accountsshortfall, all merchandise returned in each case, the “Unfunded Exposure Shortfall”), the Borrower shall cause the Servicer to direct the Collateral Agent to and all other dealings therewiththe Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the USActive 57084911.14 -84- lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Shortfall (such amount to be determined by the Servicer).
(ba) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Laws, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall ▇▇▇▇ conspicuouslyremain uninvested), in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact Permitted Investments that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Accrual Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent or the Securities Intermediary be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instruction to the Collateral Agent. The Collateral Agent or the Securities Intermediary and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Securities Intermediary’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(b) Neither the Borrower nor the Servicer shall have any event within ten days rights of such Grantor acquiring rights therein. With direction or withdrawal, with respect to any Accounts constituting Collateral amounts held in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCCCollection Account, each Grantor shall take all steps necessary except to give the Security Agent “control” (as defined extent explicitly set forth in Section 9-105 8.1(a), Section 8.1(b), Section 8.2, Section 8.3(b) or Section 10.16. Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(c) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on or prior to the date hereof and Principal Collection Account and/or (y) transfer Eligible Collateral Obligations as equity contributions to the Borrower. All such amounts will be included in each applicable compliance calculation under this Agreement, including, without limitation, calculation of the Borrowing Base and the Minimum Equity Condition.
(d) Notwithstanding any provision of the Transaction Documents to the contrary, if at any time a Borrowing Base Deficiency exists, then the Borrower may eliminate USActive 57084911.14 -85- such deficiency in its entirety by effecting one or more (or any combination thereof) of the following actions: (A) deposit into or credit to the Collection Account cash and Permitted Investments, (B) repay Loans, (C) sell Collateral Obligations in accordance with respect Section 7.11, or (D) subject to the approval of the Facility Agent in its sole discretion (other than in the case of any such Accounts hereafter arisingNon-Approval Collection Obligation), within 30 days of such Grantor acquiring rights thereinduring the Reinvestment Period, pledge additional Collateral Obligations as Collateral.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records Schedule 8.5 hereof sets forth, as of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on (i) for SPV, the name of each Person by which there is maintained, or prior to with which there is maintained, any Deposit Account or Securities Account in which any of Subscriber Funds, Investments or the date hereof proceeds thereof, or any SPV Funds, SPV Investments or the proceeds thereof are maintained, together with the title and account number of each such Deposit Account or Securities Account and (ii) for Servicer, the name of each Person by which there is maintained, or with respect which there is maintained, any Deposit Account in which any funds related to or proceeds of accounts receivable or other assets arising from or related to the Business or Electronic Commerce Services Division and in which Servicer has granted Bank a security interest under the Servicer Security Agreement are received, together with the title and account number of each such Deposit Account or Securities Account. Except for the Amended and Restated Loan and Security Agreement by and among KeyBank, Parent, and CheckFree Investment Corporation dated as of December 30, 1999, which shall be terminated prior to the commencement of the Services set forth in this Agreement, neither SPV nor Servicer has entered into any agreement with any other Person granting, conveying or transferring to such Person any rights in or control of any Deposit Account or Securities Account set forth on Schedule 8.5 or cash or financial assets maintained therein. SPV shall not have any other accounts other than the DDA, the Deposit Accounts hereafter arisingand the Securities Accounts described on Schedule 8.5 as of the Agreement Date. Servicer shall not have any other accounts in which any funds related to or proceeds of Subscriber Funds or any accounts receivable or other assets arising from or related to the Business or the Electronic Commerce Services Division and in which Servicer has granted a security interest to Bank pursuant to the Servicer Security Agreement are deposited, immediatelyother than the Deposit Accounts and Securities Accounts described on Schedule 8.5 as of the Agreement Date; provided, however that Parent or Servicer may maintain a deposit, investment or overnight investment account (collectively, the "Sweep Account") not otherwise listed in Schedule 8.5 into which all monies derived from the accounts receivable of the Electronic Commerce Services Division may be swept, prior to notice by Bank under the Control Agreements, and in which Bank shall not be granted a security interest pursuant to the Servicer Security Agreement. Moreover, any event within ten days security interest that Bank may have in the funds in the Deposit Accounts listed in Schedule 8.5 shall be terminated once such funds are transferred to the Sweep Account as permitted hereunder. All cash, checks, drafts or similar items of such Grantor acquiring rights therein. With payment relating to or constituting payments made in respect of accounts receivable arising from or related to any Accounts constituting Collateral the Business or the Electronic Commerce Services Division or other assets in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 which Servicer has granted a security interest to Bank pursuant to the Servicer Security Agreement, will be deposited only in one of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence Servicer's accounts described on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinSchedule 8.5.
Appears in 1 contract
Accounts. (a) Each Grantor The Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depository Agreement in the name of the Borrower. The Borrower shall cause the Depositary to create the Collection Account, the Custody Account, the Depository Account, the Liquidity Reserve Account, the Maintenance Reserve Account, the Discretionary Account and the Modifications and Improvements Account, in each case in accordance with the terms of the Depository Agreement. The Borrower shall notify (and the Borrower hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accountsauthorizes the Collateral Agent so to notify), including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon in each case following the occurrence and during the continuation of a Manager Default or an Event of Default that is continuingDefault, each Grantor hereby covenants Lessee and agrees that, at the request other account debtors of the Security Agent, it shall ▇▇▇▇ conspicuously, Borrower in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments writing that each Lease and other items evidencing Accounts (other than any delivered to accounts receivable of the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have Borrowers has been collaterally assigned to the Security Collateral Agent under the Loan Documents for the benefit of the Secured Parties Protected Parties. The Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Security Persons for whose benefit any such payment is made)) or otherwise in respect of amounts and other receivables of the Borrower are to be 747656567 17557858 111 Fifth Amended and Restated Warehouse Loan Agreement
(b) Any amounts from time to time held in the Collection Account, the Maintenance Reserve Account, the Modifications and Improvements Account, the Discretionary Account and the Liquidity Reserve Account may be invested in Cash Equivalents (subject to the provisions of the Depository Agreement), at the Borrower’s risk as directed in writing by the Borrower, until the application thereof in accordance with Section 2.07(c) hereof. Upon the occurrence and during the continuance of an Event of Default, the Agent has a Security Interest thereinmay direct by notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c).
(c) The Security Agent shall have Subject to the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor provisions of the Security Agent’s Security Interest in Depository Agreement, the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items may from time to time sent to or deposited in such lockbox or other arrangement directly its sole discretion (and, to the Security extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02, shall) instruct the Depositary to pay into the Collection Account any amounts from time to time on deposit in the Liquidity Reserve Account; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall have consulted with the Borrower prior to giving such instruction and (Cii) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner if and to the same extent as such Grantor might have done. If determined by the Security Agent notifies and the Borrower that a Grantor that it has elected reserve is required to collect be held in the Accounts in accordance with the preceding sentencerespect of anticipated claims by a Lessee for payment of deposit, any payments of Accounts received by maintenance reserves or insurance or indemnity payments, such Grantor reserve shall be forthwith (and in any event within two Business Days) deposited by such Grantor retained in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect Any amounts deposited into the Collection Account pursuant to any Accounts constituting Collateral this Section 6.13 shall be applied by the Agent in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof accordance with Section 2.07(c).
(e) The Manager hereby agrees to be delivered allocate all Cash Flow from the Customer Payments Account to the Security Agent (or its agent or designee) appropriately indorsed to Collections Account in accordance with the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinCustomer Collections Account Administration Agreement.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of all goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business (except with respect to progress payments received in connection with certain long term contractual agreements that such Grantor has entered into in the ordinary course of business, but in each such case, such Grantor shall identify for the benefit of Agent all material facts relevant to any such progress payments and contract, all in such detail as Agent shall reasonably require); (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Agent and the Lenders pursuant to this Security Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithGrantor described in each invoice will have been performed.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request None of the Security AgentGrantors shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If any Grantor becomes aware of any matter materially adversely affecting the collectibility of any Account or the Account Debtor therefor involving an amount greater than $1,000,000, it shall ▇▇▇▇ conspicuouslyincluding information regarding the Account Debtor's creditworthiness, in form such Grantor will promptly so advise the Agent and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that exclude such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAccount from Eligible Accounts.
(c) The Security Agent None of the Grantors shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest 's written consent other than in the Accounts ordinary course of business and any Supporting Obligation only then if the principal balance of such note or other instrument, together with all other such notes and instruments, does not exceed in the Security aggregate $5,000,000. If the Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Grantor will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent or in blanka manner satisfactory in form and substance to the Agent. Regardless of the form of presentment, if requireddemand, in the Deposit Accountnotice of protest with respect thereto, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Grantor shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by1,000,000, with any Account Debtor, and agrees to settle, contest, or constitutesadjust such dispute or claim at no expense to the Agent or any Lender. No discount, Chattel Papercredit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, each except for discounts, credits and allowances made or given in the ordinary course of such Grantor's business when no Event of Default then exists. Each Grantor shall cause send the Agent a copy of each originally executed copy thereof credit memorandum (other than any credit memorandum that arises as a result of a routine internal billing error or other typographical or administrative error) in excess of $1,000,000, as soon as issued, and such Grantor shall promptly report that credit on Borrowing Base Certificates submitted by it. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to be delivered any Grantor when no Event of Default exists, then such Grantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Agent (or its agent or designee) appropriately indorsed Account Debtor in the appropriate amount in accordance with the Grantor's customary procedures. Each Grantor shall immediately report to the Security Agent or indorsed any return involving an amount in blankexcess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to any Grantor when an Event of Default exists, such Grantor, upon the request of the Agent, shall: (i) hold such returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of such returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof returned Inventory and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinnot be Eligible Inventory.
Appears in 1 contract
Sources: Security Agreement (Unova Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it maintains an Account with an Operating Bank shall keep cause such Operating Bank to establish and maintain at such Account in the name of such Grantor on its own cost books and expense satisfactory records and complete records to enter into a letter agreement in substantially the form of its Accounts, including records of all payments received Exhibit B hereto (or make such other arrangements as are acceptable to the Security Trustee) between such Grantor and all credits granted on such Accounts, all merchandise returned and all other dealings therewiththe Security Trustee (the “Account Letter”).
(b) Upon any termination of any Account Letter or other agreement with respect to the occurrence maintenance of an Event Account by any Grantor or the Operating Bank, or an Account not constituting an Eligible Account, such Grantor shall immediately notify all Persons obligated to make any payment to such Grantor to such Account, to make all future payments to another Account meeting the requirements of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinthis Section 3.03.
(c) The Security Agent Each Grantor shall have ensure in respect of each Account that (i) any Operating Bank is a “bank” (as defined in Section 9-102(a)(8) of the right at UCC) and a Securities Intermediary, (ii) each Account is and will be maintained as a Securities Account of which the Operating Bank is the Securities Intermediary and in respect of which WEST is the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) of the “security entitlement” (as defined in Section 8-102(a)(17) of the UCC) with respect to each “financial asset” (as defined in Section 8-102(a)(9) of the UCC) credited to such Account and the Operating Bank shall comply with all entitlement orders (as defined in Section 8-102 of the UCC) issued by WEST without further consent of the Grantors or any time following other person, (iii) all Collections and other cash required to be deposited in any such Account and Permitted Investments and other property acquired with cash credited to any such Account will be credited to such Account, (iv) all items of property (whether cash, investment property, Permitted Investments, other investments, securities, instruments or other property credited to each Account will be treated as a “financial asset” (as defined in Section 8-102(a)(9) of the occurrence UCC) under Article 8 of an Event the UCC, (v) its “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of Default that the UCC) and the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) with respect to each Account is continuing the State of New York and (vi) all securities, instruments, investment property and other property in order or registered from and credited to notifyany Account shall be payable to or to the order of, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest registered in the Accounts and any Supporting Obligation and name of, the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment Operating Bank on behalf of all amounts due WEST or to become due to any Grantor thereunder directly shall be indorsed to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections Operating Bank on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense behalf of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent WEST or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each No Grantor shall cause each originally executed copy thereof to be delivered to or permit any Person other than the Security Agent (or its agent or designee) appropriately indorsed Trustee to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent have “control” (as defined in Section 9-105 104, 9-105, 9 106, or 9-107 of the UCC) over of any Collateral consisting of a “deposit account,” “electronic chattel paper,” “investment property,” “supporting obligations” or “letter of credit right” (as such Accounts (x) with respect to any such Accounts terms are defined in existence on Article 9 of the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinUCC).
Appears in 1 contract
Sources: Security Trust Agreement (Willis Lease Finance Corp)
Accounts. (a) Each Grantor The Borrower hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to the Borrower’s Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the Borrower, or rendition of services by the Borrower, in the ordinary course of the Borrower’s business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to the Borrower and disclosed to the Agent and the Lenders pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by the Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of the Borrower described in each invoice will have been performed.
(b) Upon The Borrower shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence Borrower’s business or extend or modify any Account. If the Borrower becomes aware of any matter adversely affecting the collectability of any Account or Account Debtor involving an Event of Default that is continuingamount greater than $200,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor’s creditworthiness, at the request of Borrower will promptly so advise the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Borrower shall have not accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentconsent.
(d) With respect to any Accounts constituting Collateral in excess The Borrower shall notify the Agent promptly of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof all disputes and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral claims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the UCCAgent or any Lender. No discount, each Grantor credit or allowance shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect be granted to any such Accounts Account Debtor without the Agent’s prior written consent, except for discounts, credits and allowances made or given in existence on the date hereof, on or prior ordinary course of the Borrower’s business when no Event of Default exists hereunder. The Borrower shall send the Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued.
(e) If an Account Debtor returns any Inventory to the date hereof Borrower when no Event of Default exists, then the Borrower shall promptly determine the reason for such return and (y) with respect shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrower shall immediately report to the Agent any return involving an amount in excess of $1,000,000. Each such Accounts hereafter arising, within 30 days report shall indicate the reasons for the returns and the locations and condition of such Grantor acquiring rights thereinthe returned Inventory. All returned inventory shall be subject to the Agent’s Liens thereon.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Advanced Micro Devices Inc)
Accounts. (a) Each The Grantor hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to the Grantor's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the Grantor, or rendition of services by the Grantor, in the ordinary course of the Grantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to the Grantor and disclosed to the Agent and the Lenders pursuant to the Credit Agreement and this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or any agreement therefor, will be granted on any Account, except as reported to the Agent and the Lenders; (iv) each copy of an invoice delivered to the Agent by the Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of the Grantor described in each invoice will have been performed.
(b) Upon The Grantor shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence Grantor's business or extend or modify any Account. If the Grantor becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor, involving an Event of Default that is continuingamount greater than $500,000, each including information regarding the Account Debtor's creditworthiness, the Grantor hereby covenants and agrees that, at will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Grantor shall have not accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor without the Agent's prior written consent. Any such instrument accepted by the Grantor with respect to any Account shall be considered as evidence of the Security Agent’s Security Interest in the Accounts Account and any Supporting Obligation not payment thereof and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly will promptly deliver such instrument to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to endorsed by the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation demand, or Collateral Support shall be received in trust for the benefit notice of the Security Agent hereunder and shall be segregated from other funds of such Grantor and protest with respect thereto, the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount remain liable thereon without the prior written consent of the Security Agentuntil such instrument is paid in full.
(d) With respect to any Accounts constituting Collateral The Grantor shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by350,000 with any Account Debtor, and agrees to settle, contest, or constitutesadjust such dispute or claim at no expense to the Agent or any Lender. No discount, Chattel Papercredit, each or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits, and allowances made or given in the ordinary course of the Grantor's business when no Event of Default exists. The Grantor shall cause send the Agent a copy of each originally executed copy thereof to be delivered credit memorandum in excess of $350,000 as soon as issued. The Agent may at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to the Security Agent (or its agent or designee) appropriately indorsed Grantor when no Event of Default exists, then the Grantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Account Debtor in the appropriate amount. The Grantor shall immediately report to the Agent or indorsed any return involving an amount in blankexcess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to the Grantor when an Event of Default exists, the Grantor, upon the request of the Agent, shall: (i) with respect to any such Accounts hold the returned Inventory in existence on trust for the date hereof, on or prior to the date hereof and Agent; (ii) segregate all returned Inventory from all of the Grantor's other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights thereinthereto without the Agent's prior written consent. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor All returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior be subject to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAgent's Liens thereon.
Appears in 1 contract
Sources: Security Agreement (Daisytek International Corporation /De/)
Accounts. (a) Each Grantor hereby covenants Debtor will, in the usual course of its business and agrees that it shall keep and maintain at its own cost and expense satisfactory expense, on the Lender’s behalf but not as the Lender’s agent, demand and complete records receive and use its best efforts to collect all moneys due or to become due on the Accounts. Until an Event of Default (as defined in the Loan Agreement) and the Lender gives notice to Debtor to the contrary, it may use the funds collected in its business. Upon an Event of Default and upon receipt of notice from the Lender, the Debtor agrees that all sums of money it receives on account of or in payment or settlement of the Accounts shall be held by it as trustee for the Lender without commingling with any of its Accountsfunds, including records and shall immediately be delivered to the Lender with endorsement to the Lender’s order of any check or similar instrument. If Lender notifies Debtor that the Liabilities are on a remittance basis, Debtor shall notify its account debtors that all electronic payments received on any Account shall be made directly to an account at Lender designated by and all credits granted on such Accountsunder the exclusive control of Lender, all merchandise returned and all other dealings therewithpayments on the Accounts shall be made directly to a post office box designated by and under the exclusive control of Lender. Lender shall apply received payments against the Liabilities in such order and manner as Lender elects, in its sole discretion. All notices required in this paragraph will be immediately effective when sent. Such notices need not be given prior to the Lender taking action. It is agreed that, at any time the Lender elects after an Event of Default, it shall be entitled, in its own name or in the name of the Debtor or otherwise, but at the expense and cost of the Debtor, to collect, demand, receive, ▇▇▇ for or compromise any and all Accounts, and to give good and sufficient releases, to endorse any checks, drafts or other orders for the payment of money payable to the Debtor in payment and, in its discretion, to file any claims or take any action or proceeding which the Lender may deem necessary or advisable. It is expressly understood and agreed, however, that the Lender shall not be required or obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it or to present or file any claim or take any other action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
(b) Upon the occurrence of an Event of Default that is continuingDefault, each Grantor hereby covenants the Debtor appoints the Lender or the Lender’s designee as the Debtor’s attorney-in-fact to do all things with reference to the Collateral as provided for in this section including without limitation (1) to receive, open and agrees thatdispose of mail addressed to the Debtor, at (2) to sign the request of the Security Agent, it shall Debtor’s name on any invoice or ▇▇▇▇ conspicuouslyof lading relating to any Collateral, in form on assignments and manner reasonably satisfactory verifications of account and on notices to the Security AgentDebtor’s customers, and (3) to do all Chattel Paper, Instruments things necessary to carry out this agreement. The Debtor ratifies and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit approves all acts of the Secured Parties and that the Security Agent has a Security Interest thereinLender as attorney-in-fact.
(c) The Security Agent Lender shall have not be liable for any act or omission, nor any error of judgment or mistake of fact or law, for any loss or damage which Debtor may suffer as a result of Lender’s processing of items or its exercise of any other rights or remedies under this Agreement, other than such acts, omissions, errors or mistakes resulting from the right at gross negligence or willful misconduct of Lender or its affiliates, subsidiaries, employees or representatives. Except as caused by Lenders’ or its affiliates’, subsidiaries’, employees’ or representatives’ gross negligence or willful misconduct, Debtor agrees to indemnify and hold Lender harmless from and against any time following third party claims, demands or actions, and all related expenses or liabilities, including, without limitation, attorneys fees and causes of action whatsoever. This power being coupled with an interest is irrevocable until the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts Liabilities have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfully satisfied.
(d) With respect to Immediately upon the Debtor’s receipt of any Accounts constituting Collateral in excess consisting of $5,000,000 that is evidenced by, or constitutesInstruments, Chattel PaperPaper or Documents (“Special Collateral”), each Grantor the Debtor shall cause each originally executed copy thereof ▇▇▇▇ the Special Collateral to be delivered show that it is subject to the Security Agent (or its agent or designee) appropriately indorsed Lender’s security interest and shall deliver the original to the Security Agent or indorsed Lender together with appropriate endorsements and other specific evidence of assignment in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior form and substance satisfactory to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinLender.
Appears in 1 contract
Sources: Continuing Security Agreement (Advanced Photonix Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it The Borrower shall keep and maintain at its own cost and expense satisfactory accurate and complete records of its Accounts, including records of all payments received and all credits granted collections thereon, and shall submit to the Administrative Agent sales, collection, reconciliation and other reports in form satisfactory to the Administrative Agent, on such Accountsperiodic basis as Agent may reasonably request. If Accounts in an aggregate face amount of $250,000 or more cease to be Eligible Accounts (other than due to collection), all merchandise returned the Borrower shall notify Agent of such occurrence promptly (and all other dealings therewithin any event within one Business Day) after any Loan Party has knowledge thereof.
(b) Upon If an Account of the occurrence of Borrower includes a charge for any Taxes and an Event of Default that has occurred and is continuing, each Grantor hereby covenants and agrees thatthe Administrative Agent is authorized, at in its discretion, to pay the request amount thereof to the proper taxing authority for the account of the Security AgentBorrower and to charge the Borrower therefor; provided, it that neither Agent nor Lenders shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory be liable for any Taxes that may be due from the Borrower or relate to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinCollateral.
(c) The Security Whether or not a Default or Event of Default exists, the Administrative Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereoftime, in the same manner and name of Agent, any designee of the Administrative Agent or the Borrower, to verify the same extent as such Grantor might have donevalidity, amount or any other matter relating to any Accounts of the Borrower by mail, telephone or otherwise. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance The Borrower shall cooperate fully with the preceding sentence, Administrative Agent in an effort to facilitate and promptly conclude any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentverification process.
(d) With respect The Borrower shall maintain Dominion Accounts pursuant to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, lockbox or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered other arrangements acceptable to the Security Agent Administrative Agent. The Borrower shall obtain an agreement (or its agent or designee) appropriately indorsed in form and substance satisfactory to the Security Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account (which may be exercised by the Administrative Agent only during a Dominion Trigger Period and subject to the terms of the Intercreditor Agreement) requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or indorsed bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Dominion Trigger Period, require immediate transfer of all funds in blank: (i) such account to a Dominion Account maintained with Bank of America. The Administrative Agent and Lenders assume no responsibility to the Borrower for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any such Payment Items accepted by any bank.
(e) The Borrower shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts in existence on or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If the date hereof, on Borrower or prior to the date hereof and (ii) any other Loan Party receives cash or Payment Items with respect to any such Accounts hereafter arisingCollateral, immediatelyit shall hold same in trust for the Administrative Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account.
(f) During any Dominion Trigger Period, and the ledger balance in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 the main Dominion Account as of the UCC, each Grantor end of a Business Day shall take all steps necessary be applied to give the Security Agent “control” Obligations (as defined in Section 9-105 other than Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements) at the beginning of the UCC) over such Accounts (x) with respect to any such Accounts next Business Day. Any resulting credit balance shall not accrue interest in existence on favor of the date hereof, on or prior Borrower and shall be made available to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days Borrower as long as no Default or Event of such Grantor acquiring rights thereinDefault exists.
Appears in 1 contract
Accounts. Bank's security interest in accounts shall attach to all accounts without further act on the part of Bank or Borrower. Upon request from Bank, Borrower shall provide Bank with schedules describing all accounts created or acquired by Borrower (a) Each Grantor hereby covenants including without limitation agings listing the names and agrees that it addresses of, and amounts owing by date by account debtors), and shall keep execute and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records deliver written assignments of all payments received accounts to Bank all in a form acceptable to Bank provided, however, ▇▇▇▇▇▇▇▇'s failure to execute and all credits granted on deliver such Accountsschedules and/or assignments shall not affect or limit Bank's security interest and other rights in and to the accounts. Together with each schedule, Borrower shall furnish Bank with copies of Borrower's customers' invoices or the equivalent, and original shipping or delivery receipts for all merchandise returned sold, and all other dealings therewith.
(b) Borrower warrants the genuineness thereof. Upon the occurrence of an Event of Default that is continuingDefault, each Grantor hereby covenants Bank or Bank's designee may notify customers or account debtors of Bank's security interest in the Collateral and agrees thatdirect such customers or account debtors to make payments directly to Bank, at but unless and until Bank does so or gives Borrower other written instructions, Borrower shall collect all accounts for Bank, receive in trust all payments thereon as Bank's trustee, and, deposit such collections in the request of the Security AgentLockbox Account, it shall if applicable. If so requested to do so from Bank, ▇▇▇▇▇▇▇▇ conspicuouslyshall immediately deliver said payments to Bank in their original form as received from the account debtor and all letters of credit, advices of credit, instruments, documents, chattel paper or any similar property evidencing or constituting Collateral Notwithstanding anything to the contrary contained herein, if sales of inventory are made for cash, Borrower shall immediately deliver to Bank, in form and manner reasonably satisfactory to the Security Agentidentical form, all Chattel Papersuch cash, Instruments and checks, or other items evidencing Accounts (forms of payment which Borrower receives. The receipt of any check or other than any delivered item of payment by Bank shall not be considered a payment on account until such check or other item of payment is honored when presented for payment, in which event, said check or other item of payment shall be deemed to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned paid to Bank three (3) calendar days after the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in date Bank actually receives such lockbox check or other arrangement directly to the Security Agent and (C) enforce, at the expense item of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentpayment.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Revolving Credit Note (Hall Kinion & Associates Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it Except as otherwise provided in this subsection 6.11, Debtor shall keep and maintain continue to collect, at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accountsexpense, all merchandise returned amounts due or to become due to Debtor under the Accounts and all other dealings therewith.
apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, Debtor may take (b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees thatand, at the request Agent's direction, shall take) such action as Debtor or Agent may deem necessary or advisable to enforce collection of the Security AgentAccounts; provided, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default that is continuing to notify, or require any Grantor to notify, any to: (a) notify the Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts (or any other Person obligated thereon) of the assignment of such Accounts to Agent and to direct such Account Debtors and other Persons to make payment of all amounts due or to become due to any Grantor thereunder or otherwise render performance directly to Agent; (b) exercise the Security Agent, (B) notify, or require a Grantor rights of Debtor with respect to notify, each person maintaining a lockbox or similar arrangement to which the obligation of the Account Debtors under any Accounts have been directed Debtor to make payment or otherwise render performance to remit all amounts representing collections Debtor and with respect to any property that secures the obligations of the Account Debtor or any other Person obligated on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent Collateral; and (Cc) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in of such Accounts. After the same manner occurrence and to during the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments continuance of Accounts received by such Grantor shall be forthwith an Event of Default (and in any event within two Business Daysi) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in Debtor with respect of to the Accounts, any Supporting Obligation or Collateral Support Accounts shall be received in trust for the benefit of the Security Agent hereunder and (on behalf of Lenders), shall be segregated from other funds of such Grantor Debtor and shall be forthwith paid over to Agent in the Grantor same form as so received (with any necessary endorsement) to be held in the Depository Account pursuant to Section 7 or applied pursuant to Section 14. Debtor shall not adjust, settle or compromise the amount or payment of any AccountsAccount, or release wholly or partly any Account Debtor customer or obligor thereof, or allow any credit or discount thereon (other than credits and discounts in the ordinary course of business and in amounts which are not material to Debtor) without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, in accordance with its customary practices. The costs and expenses (including records attorney’s fees) of all payments received and all credits granted on collection, whether incurred by such AccountsLien Grantor or the Administrative Agent, all merchandise returned and all other dealings therewithshall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor’s Accounts are received in a lockbox or similar account, such Lien Grantor will (i) at all times cause such account to be a Controlled Deposit Account and (ii) cause the occurrence of relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). The Administrative Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Lien Grantor; provided that, if an Event of Default that is continuingshall have occurred and be continuing and the Administrative Agent has notified such Lien Grantor of its intent to exercise its rights hereunder, each the Administrative Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing and the Administrative Agent has notified such Lien Grantor hereby covenants and agrees thatof its intent to exercise its rights hereunder, at such Lien Grantor will, if requested to do so by the request of the Security Administrative Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Administrative Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Administrative Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Administrative Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it Except as otherwise provided in this Section 4.2, each Debtor shall keep and maintain continue to collect, at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accountsexpense, all merchandise returned amounts due or to become due to such Debtor with respect to Accounts and all other dealings therewith.
apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, such Debtor may take (b) Upon and at Secured Party’s direction during the occurrence continuance of an any Event of Default that is continuingDefault, each Grantor hereby covenants and agrees thatshall take) such action as such Debtor or Secured Party, at the request as applicable, may deem necessary or advisable to enforce collection of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Accounts. Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Party shall have the right at any time following after the occurrence and during the continuance of an Event of Default that is continuing to notify, or require any Grantor to notify, any to: (i) notify the Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts (or any other Person obligated thereon) of the Lien granted upon such Accounts in favor of Secured Party and to direct such Account Debtors and other Persons to make payment of all amounts due or to become due to any Grantor thereunder or otherwise render performance directly to Secured Party; (ii) exercise the Security Agent, (B) notify, or require a Grantor rights of such Debtor with respect to notify, each person maintaining a lockbox or similar arrangement to which the obligation of the Account Debtors under any Accounts have been directed Debtor to make payment or otherwise render performance to remit all amounts representing collections such Debtor and with respect to any property that secures the obligations of the Account Debtor or any other Person obligated on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent Collateral; and (Ciii) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in of such Accounts. After the same manner occurrence and to during the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments continuance of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned overan Event of Default, all amounts and Proceeds (including checks and other instruments) received by such Grantor in Debtor with respect of to the Accounts, any Supporting Obligation or Collateral Support Accounts shall be received in trust for the benefit of the Security Agent hereunder and Secured Party (on behalf of Secured Party), shall be segregated from other funds of such Grantor Debtor and shall be forthwith paid over to Secured Party in the Grantor same form as so received (with any necessary endorsement) to be held in any Deposit Account pursuant to Section 4.12 and applied pursuant to the terms of the Purchase Agreement. No Debtor shall not adjust, settle or compromise the amount or payment of any AccountsAccount, or release wholly or partly any Account Debtor or obligor thereofDebtor, or allow any credit or discount thereon (other than credits and discounts in the Ordinary Course of Business) without the prior written consent of Secured Party. Each Debtor agrees to execute any document or instrument, and to take any action, necessary under Applicable Law (including the Security Agent.
(dAssignment of Claims Act) With respect in order for Secured Party to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent exercise its rights and remedies (or be able to exercise its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (irights and remedies at some future date) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of Debtor where the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAccount Debtor is a Governmental Authority.
Appears in 1 contract
Sources: Security Agreement (Tel Instrument Electronics Corp)
Accounts. (a) Each Grantor hereby Borrower represents, warrants and covenants that there are and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records be no deposit, securities or similar accounts (other than the Accounts) maintained by Borrower or any other Person with respect to the Project. Borrower shall promptly deposit or cause to be deposited all Operating Revenues into the Collections Accounts within two (2) Business Days of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithreceipt.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and Borrower agrees that, at until the request Obligations are indefeasibly satisfied in full, neither Borrower nor any other Person shall (i) close the Collections Accounts, (ii) open any accounts for the operations of the Security AgentProject except for the Accounts and any other accounts approved by Lender in its sole discretion or (iii) rescind, it withdraw or change the directions sent pursuant to Section 8.19(a) without Lender’s prior written consent. The foregoing shall ▇▇▇▇ conspicuouslynot prohibit Borrower from opening, in form maintaining and manner reasonably satisfactory utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower to the Security Agentextent permitted under this Agreement and the other Loan Documents and provided that, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered prior to the Security Agent use of such separate accounts, Borrower pledges and grants to Lender a security interest in all such funds and accounts as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent additional security for the benefit of the Secured Parties Loan and that the Security Agent has enters into a Security Interest thereincontrol agreement(s) evidencing and/or securing such pledge as Lender shall require.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing Borrower hereby pledges and grants to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest Lender a security interest in the Collections Accounts, the other Accounts and any Supporting Obligation in all such funds and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent accounts as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust additional security for the benefit of the Security Agent hereunder Obligations and shall be segregated from other funds of enter into such Grantor and the Grantor control agreement(s) evidencing and/or securing such pledge as Lender shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentrequire.
(d) With respect to Borrower acknowledges that if Depositary Bank sets off and/or charges the Collections Accounts for any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byfees or expenses, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent within fifteen (or its agent or designee15) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect set off or charge, Borrower shall deposit, or shall cause to any be deposited, into the Collections Accounts constituting Collateral in excess an amount equal to such set off or charge.
(e) During a Cash Sweep Period or Event of $1,000,000 that constitutes “Default, Borrower shall provide to Lender electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior access to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAccounts.
Appears in 1 contract
Sources: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Accounts. (a) Each Grantor hereby covenants The Borrower also warrants and represents that it is a duly and validly existing corporation and is qualified in all states where the failure to so qualify would have a adverse effect on the business of the Borrower or the ability of the Borrower to enforce collection of Accounts due from customers residing in that state. The Borrower agrees to maintain such books and records regarding Accounts as CITBC may reasonably require and agrees that it shall keep the books and maintain at its own cost and expense satisfactory and complete records of its the Borrower will reflect CITBC's interest in the Accounts. All of the books and records of the Borrower will be available to CITBC at normal business hours, including any records handled or maintained for the Borrower by any other company or entity.
4. The Borrower agrees to notify CITBC promptly of any matters materially affecting the value, enforceability or collectability of any Account or Accounts in excess of $250,000 in the aggregate outstanding at any time and of all payments received material customer disputes, offsets, defenses, counterclaims, returns, rejections and all credits granted on such Accounts, all reclaimed or repossessed merchandise returned and all other dealings therewith.
or goods. The Borrower agrees to issue credit memoranda promptly (b) Upon with duplicates to CITBC upon request after the occurrence of an Event of Default) upon accepting returns or granting allowances, and may continue to do so until CITBC has notified the Borrower that an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties has occurred and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following all future credits or allowances are to be made only after CITBC's prior written approval. Upon the occurrence and during the continuance of an Event of Default and on notice from CITBC, the Borrower agrees that is continuing to notifyall returned, reclaimed or require any Grantor to notifyrepossessed merchandise or goods shall be set aside by the Borrower, any Account Debtor marked with CITBC's name and held by the Borrower for CITBC's account as owner and assignee.
5. The Borrower shall maintain the bank accounts listed on Schedule 3.5 hereto in the name of the Security Agent’s Security Interest in Borrower for the purpose of, inter alia, receiving proceeds relating to the Accounts and any Supporting Obligation and with the Security Agent may: banks specified therein (Athe "Collection Bank(s)") direct hereby designated as the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor "Collection Accounts." The Borrower agrees that it has elected to collect the Accounts in accordance with the preceding sentence, will not designate any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any bank account as a Collection Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of CITBC. Any checks, cash, notes or other instruments or property received by the Security Agent.
(d) With Borrower with respect to any Accounts constituting Collateral shall be held by the Borrower in excess of $5,000,000 that is evidenced by, trust for CITBC separate from the Borrower's own property and funds and immediately turned over to CITBC with proper assignments or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered endorsements by deposit to the Security Agent (or its agent or designee) appropriately indorsed Collection Account. All amounts received by CITBC in payment of Accounts will be credited to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence Borrower's accounts upon CITBC's receipt of "collected funds" at CITBC'S bank account on the date hereof, on business day of receipt if received no later than 1:00 p.m. or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereofnext succeeding business day if received after 1:00 p.m. No checks, on drafts or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.other instrument
Appears in 1 contract
Sources: Financing and Security Agreement (Devlieg Bullard Inc)
Accounts. Bank's security interest in Accounts shall attach to all -------- Accounts without further act on the part of Bank or Borrowers. Upon request from Bank, Borrowers shall provide Bank with schedules describing all Accounts created or acquired by Borrowers (a) Each Grantor hereby covenants including without limitation agings listing the names and agrees that it addresses of, and amounts owing by date by account debtors), and shall keep execute and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records deliver written assignments of all payments received Accounts to Bank all in a form acceptable to Bank, provided, however, Borrowers' failure to execute and all credits granted on deliver such schedules and/or assignments shall not affect or limit Bank's security interest and other rights in and to the Accounts. Together with each schedule, Borrowers shall furnish Bank with copies of Borrowers' customers' invoices or the equivalent, and original shipping or delivery receipts for all merchandise returned sold, and all other dealings therewith.
(b) Borrowers warrant the genuineness thereof. Upon the occurrence and during the continuance of an Event of Default that is continuingDefault, each Grantor hereby covenants Bank or Bank's designee may notify customers or account debtors of Bank's security interest in the Collateral and agrees thatdirect such customers or account debtors to make payments directly to Bank, at but unless and until Bank does so or gives Borrowers other written instructions, Borrowers shall collect all Accounts for Bank, receive in trust all payments thereon as Bank's trustee, and, deposit such collections in the request of Lockbox Account. During the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence continuance of an Event of Default that is continuing Default, if so requested by Bank, Borrowers shall immediately deliver said payments to notifyBank in their original form as received from the account debtor and all letters of credit, advices of credit, instruments, documents, chattel paper or any similar property evidencing or constituting Collateral. Notwithstanding anything to the contrary contained herein, during the continuance of an Event of Default, if sales of inventory are made for cash, Borrowers shall immediately deliver to Bank, in identical form, all such cash, checks, or require other forms of payment which Borrowers receive. The receipt of any Grantor check or other item of payment by Bank shall not be considered a payment on account until such check or other item of payment is honored when presented for payment, in which event, said check or other item of payment shall be deemed to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed paid to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in Bank three (3) calendar days after the date Bank actually receives such lockbox check or other arrangement directly to the Security Agent and (C) enforce, at the expense item of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentpayment.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Iprint Technologies Inc)
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Servicer or each Securitization Subsidiary, as applicable, shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3(a); provided that, notwithstanding the foregoing, Accounts denominated in an Eligible Currency other than Dollars may be established after the Eighth Amendment Effective Date but prior to the date any Advance is made in such Eligible Currency. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the funds in such Account shall keep be transferred to an account at another institution where such account meets the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than (ix) prior to the end of the Revolving Period, the Revolving Liquidity Adjustment Amount and maintain at its own cost (iiy) after the end of the Revolving Period, the Aggregate Unfunded Amount. Following the Facility Termination Date, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and expense satisfactory a certification that the conditions to fund such draw are satisfied, and complete records the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of its Accountsthe Revolving Period, including records if a Loan Party shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of all payments received the date of such receipt (and all credits granted after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of such Accountsshortfall, all merchandise returned in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and all other dealings therewiththe Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (ax) the aggregate amount of such Principal Collections and (by) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it as in the Standby Directed Investment or as otherwise directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall ▇▇▇▇ conspicuouslyremain uninvested), in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact Permitted Investments that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Accrual Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Borrower, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Servicer, the Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days Account, except to the extent explicitly set forth herein (including, without limitation, the withdrawal rights for the Unfunded Exposure Account set forth in this Article VIII and in Section 8.1(a)10.16). Subject to the other provisions hereof, after the delivery of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess a Notice of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” Exclusive Control (as defined in Section 9-105 the Account Control Agreement), the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereofPrincipal Collection Account, on the Interest Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base, the Maximum Availability and the Minimum Equity Condition.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Accounts. (a) Each Grantor The Borrowers, jointly and severally, hereby covenants represent and agrees warrant to the Agent and the Lenders, with respect to the Borrowers' Accounts reflected as part of Eligible Accounts in any Borrowing Base Certificate, that it shall keep except as disclosed in that Borrowing Base Certificate: (i) each such Account represents a BONA FIDE sale or lease and maintain at its own cost and expense satisfactory and complete records delivery of goods by a Borrower, or rendition of services by a Borrower, in the ordinary course of its Accountsbusiness; (ii) each such Account is for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, including records without any offset, deduction, defense, or counterclaim except those known to the applicable Borrower; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by a Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in each invoice will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewith.Borrower described in each invoice will have been performed in each case as described in the applicable invoice..
(b) Upon Neither Borrower shall redate any invoice or sale or make sales on extended dating beyond that customary in the occurrence Borrowers' business or extend or modify any Account. If either Borrower becomes aware of an Event any matter affecting the collectability of Default that is continuingany Account or Account Debtor wherein the adverse effect equals or exceeds $20,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Neither Borrower shall accept any note or other instrument (except a check or other instrument for the immediate payment of money) with respect to any Account, except for Accounts which have ceased to be Eligible Accounts and following notice to the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor Agent. Any such instrument shall be considered as evidence of the Security Agent’s Security Interest in the Accounts Account and any Supporting Obligation not payment thereof and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly applicable Borrower will promptly deliver such instrument to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly endorsed by that Borrower to the Security Agent in a manner satisfactory in form and (C) enforce, at substance to the expense Agent. Regardless of any Grantor, collection the endorsement and delivery of any such Accounts and instrument to adjustAgent, settle or compromise the amount or Agent's acceptance thereof shall not constitute payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received Obligations until such instrument is paid in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Borrower shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by50,000, individually, or constitutes$100,000 in the aggregate with any Account Debtor, Chattel Paperand agrees to settle, each Grantor shall cause each originally executed copy thereof to be delivered contest, or adjust such dispute or claim at no expense to the Security Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Borrowers' business when no Event of Default exists hereunder. Each Borrower shall send the Agent a copy of each credit memorandum in excess of $25,000 as soon as issued. The Agent may, and at the direction of the Majority Lenders shall, at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the applicable Borrower's Loan Account with only the net amounts received by the Agent in payment of any Accounts.
(or its agent or designeee) appropriately indorsed If an Account Debtor returns any Inventory to either Borrower when no Event of Default exists, then the applicable Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Account Debtor in the appropriate amount. Each Borrower shall immediately report to the Agent or indorsed any return involving an amount in blankexcess of $50,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to either Borrower when an Event of Default exists, the applicable Borrower, upon request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.returned Inventory
Appears in 1 contract
Sources: Loan and Security Agreement (Waxman Industries Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it Except as otherwise provided in this subsection -------- 6.11, Debtor shall keep and maintain continue to collect, at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accountsexpense, all merchandise returned amounts due or to become due Debtor under the Accounts and all other dealings therewith.
(b) Upon apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, Debtor may take such action as Debtor may deem necessary or advisable to enforce collection of the Accounts; provided, that upon the -------- occurrence and during the continuance of an Event of Default that is continuingDefault, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Investor shall have the right at any time following to: (a) notify the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts (or any other Person obligated thereon) of the assignment of such Accounts to the Investor and to direct such Account Debtors and other Persons to make payment of all amounts due or to become due to any Grantor thereunder or otherwise render performance directly to the Security Agent, Investor; (Bb) notify, or require a Grantor exercise the rights of Debtor with respect to notify, each person maintaining a lockbox or similar arrangement to which the obligation of the Account Debtors under any Accounts have been directed Debtor to make payment or otherwise render performance to remit all amounts representing collections Debtor and with respect to any property that secures the obligations of the Account Debtor or any other Person obligated on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent Collateral; and (Cc) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in of such Accounts. Upon the same manner occurrence and to during the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments continuance of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned overan Event of Default, all amounts and Proceeds (including checks and other instruments) received by such Grantor in Debtor with respect of to the Accounts, any Supporting Obligation or Collateral Support Accounts shall be received in trust for the benefit of the Security Agent hereunder and Investor, shall be segregated from other funds of such Grantor Debtor and shall be forthwith paid over to the Grantor Investor in the same form as so received (with any necessary endorsement) to be held in the Depository Account pursuant to Section 7 or applied pursuant to Section 14. Debtor shall not adjust, settle --------- ---------- or compromise the amount or payment of any AccountsAccount, or release wholly or partly any Account Debtor customer or obligor thereof, or allow any credit or discount thereon (other than credits and discounts in the ordinary course of business and in amounts which are not material to Debtor) without the prior written consent of the Security AgentInvestor.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Acknowledgment and Agreement (Andrea Electronics Corp)
Accounts. (a) Each Grantor Option Care Person hereby represents and warrants to the Lenders and the Lenders' Agent and covenants with the Lenders and agrees the Lenders' Agent that:
(i) each existing Account represents, and each future Account shall represent, a BONA FIDE sale or lease and delivery of goods by an Option Care Person, or rendition of services by an Option Care Person, in the ordinary course of business of an Option Care Person; (ii) each existing Account is, and each future Account shall be, at the time any such Account arose and at the time any such Account is billed, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Lenders, without offset, deduction, defense, or counterclaim, other than discounts required by law or contract, and corrections of billing errors, in the ordinary course of business of an Option Care Person; (iii) no payment shall be received with respect to any Account, and no credit, discount, extension, or agreement therefor shall be granted on any Account, except as reported to the Lenders and the Lenders' Agent in accordance with this Agreement; (iv) each copy of an invoice or claim form delivered to any Lender or the Lenders' Agent by an Option Care Person shall be a genuine copy of the original invoice or claim form sent to the Account Debtor named therein; (v) all goods described in any invoice or claim form representing a sale of goods shall have been delivered to the applicable patient and all services of any Option Care Person described in any invoice or claim form shall have been performed; (vi) each of the Accounts and the related contracts is in full force and effect and represents and constitutes a legal, valid and binding obligation of the related Account Debtor, enforceable against such Account Debtor in accordance with its terms; (vii) promptly following notice from an Account Debtor as to an earlier overpayment by such Account Debtor to any Option Care Person, such Option Care Person has made all payments to such Account Debtor which are necessary to prevent such Account Debtor from offsetting such overpayment against any amount which such Account Debtor owes on the Accounts (however, each Lender acknowledges that it shall keep notwithstanding said payments, offsets may and maintain do nonetheless occur); (viii) no direction of any Option Care Person or any other Person is in effect directing Account Debtors (A) to remit payments in respect of the Accounts other than to a Lockbox or a Blocked Account or (B) to remit EOBs in respect of the Accounts to any Person or address other than to an Option Care Person at its own cost chief executive office; and expense satisfactory (ix) during the one year prior to the Closing Date, no Option Care Person has been subject to any Government Offset involving in excess of fifty thousand dollars ($50,000). As of the date of each Borrowing, each Option Care Person is unaware of any potential Government Offset involving in excess of fifty thousand dollars ($50,000) for any single Governmental Offset and complete records in excess of its Accountstwo hundred thousand dollars ($200,000) for all such Government Offsets that has not been disclosed by such Option Care Person to the Lenders in writing prior to that date. All of the Medicaid and Medicare reports required to be filed by any Option Care Person for all reporting periods have been filed with the applicable Government Account Debtor, including records or HCFA designated agents or agents of such Government Account Debtor. At all payments received times on and after the thirtieth day following the Closing Date, each Option Care Person hereby represents and warrants to the Lenders and the Lenders' Agent that Account Debtor Notices, signed by the Borrowers, have been delivered to all credits granted on such Accounts, all merchandise returned and all other dealings therewithof the Account Debtors of the type referred to in clause (p) of the definition of Eligible Account.
(b) Upon the occurrence of an Event of Default that is continuingNo Option Care Person shall re-date any invoice, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in claim form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts or sale or make sales on extended dating or extend or modify any Account (other than to correct billing errors in the ordinary course of business). Each Lender acknowledges that if an Account Debtor which is the "primary" payor does not pay a claim in full or denies such claim, an Option Care Person may send a separate invoice to an Account Debtor which is a "secondary" payor. If any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit Option Care Person becomes aware of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default matter that is continuing reasonably likely to notify, or require any Grantor to notify, materially adversely affect any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct other than a Self-Pay Account Debtor), including information regarding the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to Debtor's creditworthiness, such Option Care Person shall promptly so advise the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Lenders' Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to Agents and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to Agent, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to Agent and the Lenders in writing (including records disclosure of same on any Borrowing Base Certificate); (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to Agent and the Lenders in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received Goods described in any invoice representing a sale of Goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithGrantor described in each invoice will have been performed.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If a Grantor becomes aware of any matter adversely affecting the occurrence collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each including information regarding the Account Debtor's creditworthiness, such Grantor hereby covenants will promptly so advise Agent and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory exclude such Account from Eligible Accounts to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to extent required under the Security Agent as provided herein) with an appropriate reference to definition thereof in the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinCredit Agreement.
(c) The Security Agent No Grantor shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of the Security constituting an Eligible Account without Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security 's written consent. If Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts and to adjustinstrument, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (considered as evidence of the Account and in any event within two Business Days) deposited by not payment thereof and such Grantor in the exact form receivedGrantor, duly indorsed at Agent's request, will promptly deliver such instrument to Agent, endorsed by such Grantor to Agent in a manner satisfactory in form and substance to Agent. Regardless of the Security Agent or in blankform of presentment, if requireddemand, in the Deposit Accountnotice of protest with respect thereto, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Each Grantor shall cause each originally executed copy thereof to be delivered to the Security notify Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof promptly of all disputes and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral claims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCCwith any Account Debtor, each Grantor and agrees to settle, contest, or adjust such dispute or claim at no expense to Agent or any Lender. No discount, credit or allowance shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect be granted to any such Accounts Account Debtor without Agent's prior written consent, except for discounts, credits and allowances made or given in existence on the date hereofordinary course of a Grantor's business when no Event of Default exists hereunder. Each Grantor shall send Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinshall promptly report that credit on Borrowing Base Certificates submitted by it. Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Agent (or the Majority Lenders, as applicable) shall consider advisable and, in all cases, Agent will credit such Grantor's Loan Account with the net amounts received by Agent in payment of any Accounts.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep The General Interest Trustee will establish and maintain at its own cost with respect to the General Trust Assets a General Collection Account and expense satisfactory such other bank accounts as may be directed in writing by the Initial Beneficiary (the "General Trust Accounts"). Each Portfolio Trustee will ---------------------- establish and complete records of its maintain with respect to each Portfolio Interest such bank accounts as may be set forth in the applicable Portfolio Supplement ("Portfolio Accounts" and, together with the General Trust Accounts, including records of all payments received and all credits granted on such the ------------------ "Trustee Accounts, all merchandise returned and all other dealings therewith."). ----------------
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory Except to the Security Agentextent otherwise provided in the applicable Portfolio Supplement, all Chattel Paper, Instruments and other items evidencing Accounts Trust expenses shall be paid by the Servicer (other than any delivered Liquidation Expenses and losses with respect to the Security Agent Trust Assets). In the event of any failure of the Servicer to pay any expense of the Trust, such expense shall be paid as provided hereinin Section 3.14 of the Servicing Agreement, and if the funds available therein are insufficient to pay such liability or expense, then (i) with an appropriate reference to the fact extent that any such Accounts have been collaterally assigned expense or liability shall be incurred or suffered with respect to any particular Portfolio Interest or General Interest Trustee or any Portfolio Trustee, such expense or liability shall be paid from the assets of that Portfolio Interest or General Interest and (ii) to the Security Agent for extent that any such expense or liability shall be incurred or suffered with respect to the benefit Trust Assets generally, all Holders of the Secured Parties Trust shall bear the burden of such Trust expense or liability on a pro rata basis in the ratio of the aggregate --- ---- value of Trust Assets held in each of the respective Portfolio Assets and that the Security Agent has a Security General Trust Assets, as each is recorded on the books of the Trust to the total value of all Trust Assets. Any pro rata allocation of an expense --- ---- or liability among one or more of the Portfolio Assets or the General Trust Assets shall be made by the General Interest thereinTrustee in good faith and so as not to disproportionately affect any of the Portfolio Assets or the General Trust Assets.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, All or require any Grantor to notify, any Account Debtor a portion of the Security Agent’s Security funds deposited into each General Trust Account shall be separately invested by the General Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items Trustee from time to time sent to in Eligible Investments as directed in writing (which may be in the form of written confirmation of an oral direction) by the GI Servicer. All income or gain from investment of monies in each such General Trust Account shall be deposited in upon receipt into such lockbox or other arrangement directly to the Security Agent General Trust Account, and (C) enforce, at the expense of any Grantor, collection of loss resulting from any such Accounts investment shall be charged to such account, as the case may be. Each such investment shall be made in the name of the General Interest Trustee or its nominee and to adjust, settle or compromise the amount or payment thereofshall be evidenced by an instrument or, in the same manner and case of "book-entry" investments, registration on the books of the issuer of the General Interest Trustee or a nominee as the registered owner thereof. If any certificate is issued with respect to any investment, it shall be delivered to the same extent as such Grantor might have doneGeneral Interest Trustee or its agent. If at any time the Security Agent notifies GI Servicer shall not have given the General Interest Trustee a Grantor that it has elected timely investment directive with respect to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit General Trust Account, the General Interest Trustee shall invest and until so turned over, all amounts and Proceeds (including checks and other instrumentsreinvest any monies in such account(s) received in Eligible Investments selected by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentGeneral Interest Trustee.
(d) With All or a portion of the funds deposited into each Portfolio Account shall be separately invested by the applicable Portfolio Trustee from time to time in Eligible Investments as directed in writing by the applicable Majority PI Holder or the Servicer, as specified in the applicable Servicing Agreement. All income or gain from investment of monies in each such Portfolio Account shall be deposited upon receipt into such Portfolio Account, and any loss resulting from any such investment shall be charged to such account, as the case may be. Each such investment shall be made in the name of the applicable Portfolio Trustee or its nominee and shall be evidenced by an instrument or, in the case of "book-entry" investments, registration on the books of the issuer of the applicable Portfolio Trustee or a nominee as the registered owner thereof. If any certificate is issued with respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byinvestment, or constitutes, Chattel Paper, each Grantor it shall cause each originally executed copy thereof to be delivered to the Security Agent (applicable Portfolio Trustee or its agent agent. If at any time the applicable Majority PI Holder or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) Servicer shall not have given the applicable Portfolio Trustee a timely investment directive with respect to any account, such Accounts Portfolio Trustee shall invest and reinvest all monies in existence on such account(s) in securities issued by the date hereof, on or prior to the date hereof and (ii) United States Treasury with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinmaturities not longer than seven days.
Appears in 1 contract
Sources: Trust Agreement (Navistar Financial Retail Receivables Corporation)
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Servicer shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3(a). If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the Servicer shall keep transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account plus, solely during the Revolving Period, the undrawn portion of the Commitments, is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and maintain at its own cost a certification that the conditions to fund such draw are satisfied, and expense satisfactory the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of the date of such receipt (and complete records after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of its Accountssuch shortfall, including records in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of all payments received such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and all credits granted on such Accounts, all merchandise returned and all other dealings therewith(b) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuouslyas directed by the Servicer in writing (or, in form and manner reasonably satisfactory if the Servicer fails to the Security Agentprovide such direction, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and invested in any event within two Business Days) deposited standing investment separately identified by such Grantor the Servicer and described in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
clause (d) With respect to any Accounts constituting Collateral of the definition of Permitted Investments), in excess of $5,000,000 Permitted Investments that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the CollectionAccrual Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Servicer, the Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days of such Grantor acquiring Account, except to the extent explicitly set forth herein (including the withdrawal rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of for the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined Unfunded Exposure Account set forth in Section 9-105 8.1(a)). Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on Principal Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base, the Maximum Availability and the Minimum Equity Test.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Accounts. (a) Each Grantor hereby covenants The Company shall, and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records cause each of its AccountsSubsidiaries to, including records cause to be mailed, by the respective payors thereof, directly into the post office lockbox opened in accordance with the terms of the Lockbox Agreement or if the Company or any of its Subsidiaries opens a post office lockbox and lockbox account with another commercial bank or financial institution in accordance with subsection (c) of this Section, such post office lockbox (each such lockbox, a "Lockbox"), all revenues, receipts and other amounts which the Company or any of its Subsidiaries is entitled to receive from any source whatsoever (including, without limitation, all payments received in respect of its Contractual Obligations and all credits granted on dividends and other distributions paid to the Company or any of its Subsidiaries by any of the Company's Subsidiaries). The Company shall open and maintain a lockbox account in accordance with the terms of the Lockbox Agreement (such Accountsaccount and the lockbox account opened with another commercial bank or financial institution in accordance with subsection (c) of this Section, all merchandise returned a -29- "Lockbox Account"). The Company and all other dealings therewithits Subsidiaries shall maintain no more than two Lockboxes and two Lockbox Accounts at any one time.
(b) Upon The Company, for itself and on behalf of its Subsidiaries, the occurrence of an Event of Default Collateral Agent and KeyBank shall execute the Lockbox Agreement stating, among other things, that (i) the Lockbox Account is continuing, each Grantor hereby covenants and agrees that, at the request deemed to be a "deposit account" as such term is defined in Article 9 of the Security Agent, UCC and (ii) KeyBank agrees that it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to will comply with the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit instructions directing disposition of the Secured Parties and that funds in the Security Lockbox Account originated by the Collateral Agent has a Security Interest thereinwithout further consent by the Company or any of its Subsidiaries.
(c) The Security Company or any of its Subsidiaries may, upon 30 days' notice to the Collateral Agent, open another Lockbox and Lockbox Account with another commercial bank or financial institution into which all of the items described in clause (a) of this Section that are not mailed to any other Lockbox shall be mailed. If the Company or any of its Subsidiaries elects to open a new Lockbox and Lockbox Account with another commercial bank or financial institution, the Company or such Subsidiary and the Collateral Agent shall have execute a security agreement, substantially in the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor form of the Security Agent’s Security Interest Agreement or such form as the Collateral Agent may, in its reasonable discretion, approve, and the Company or such Subsidiary, the Collateral Agent and the commercial bank or financial institution maintaining such Lockbox Account shall execute an agreement, in form and substance as the Collateral Agent may, in its reasonable discretion, approve, stating that (i) such Lockbox Account is deemed to be a "deposit account" as such term is defined in Article 9 of the UCC and (ii) such commercial bank or financial institution will comply with the instructions directing disposition of the funds in the Accounts and any Supporting Obligation and Lockbox Account originated by the Security Collateral Agent may: (A) direct without further consent by the Account Debtors under any Accounts to make payment of all amounts due Company or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentSubsidiary.
(d) With respect So long as no Event of Default has occurred or is continuing or would result therefrom, the Company may transfer funds from any of the Lockbox Accounts to any Accounts constituting Collateral in excess other account maintained by the Company or any of $5,000,000 that is evidenced by, its Subsidiaries or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to for any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinother purpose.
Appears in 1 contract
Sources: Senior Secured Notes Agreement (Pacific Aerospace & Electronics Inc)
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Agent and the Lenders pursuant to the Credit Agreement and this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or any agreement therefor, will be granted on any Account, except as reported to the Agent and the Lenders in Borrowing Base Certificates delivered in accordance with the Credit Agreement and this Agreement; (iv) each copy of an invoice delivered to the Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithGrantor described in each invoice will have been performed.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If any Grantor becomes aware of any matter adversely affecting the occurrence collectibility of an Event of Default that any Account or the Account Debtor therefor, including information regarding the Account Debtor's creditworthiness, such Grantor will exclude such Account from Eligible Accounts and, with respect to any such Account Debtor which is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuouslyobligated on Accounts owing to any Grantor, in form and manner reasonably satisfactory to an aggregate amount greater than $500,000, promptly so advise the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent No Grantor shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor without the Agent's prior written consent. Any such instrument accepted by a Grantor with respect to any Account shall be considered as evidence of the Security Agent’s Security Interest in the Accounts Account and any Supporting Obligation not payment thereof and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any such Grantor thereunder directly will promptly deliver such instrument to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent in a manner satisfactory in form and substance to the Agent. Regardless of the form of presentment, demand, or in blanknotice of protest with respect thereto, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Grantor shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by350,000 with any Account Debtor, and agrees to settle, contest, or constitutesadjust such dispute or claim at no expense to the Agent or any Lender. No discount, Chattel Papercredit, each or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits, and allowances made or given in the ordinary course of a Grantor's business when no Event of Default exists. Each Grantor shall cause send the Agent a copy of each originally executed copy thereof credit memorandum in excess of $350,000 as soon as issued, and such Grantor shall promptly report that credit on Borrowing Base Certificates submitted by the Grantors. The Agent may at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to be delivered any Grantor when no Event of Default exists, then such Grantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Agent (or its agent or designee) appropriately indorsed Account Debtor in the appropriate amount. Each Grantor shall immediately report to the Security Agent or indorsed any return involving an amount in blankexcess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to any Grantor when an Event of Default exists, such Grantor, upon the request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of such Grantor's other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof returned Inventory and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinnot be Eligible Inventory.
Appears in 1 contract
Sources: Security Agreement (Daisytek International Corporation /De/)
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will follow its own cost and expense satisfactory and complete records of customary business practices to cause to be collected from its account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Collateral Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business, or consistent with prudent business practices, as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor’s historical collection practices. The reasonable costs and out-of-pocket expenses (including attorney’s fees) of collection, whether incurred by such Lien Grantor or the Collateral Agent, shall be paid by such Lien Grantor.
(b) Upon Such Lien Grantor shall allow payments with respect to any of such Lien Grantor’s Accounts to be received in a lockbox or similar account other than a Controlled Deposit Account only to the occurrence extent that a breach of an Event Section 7.13 of Default that is continuingthe Credit Agreement will not result therefrom. To the extent required by Section 7.13 of the Credit Agreement, each the Lien Grantor hereby covenants and agrees will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Lien Grantor; provided that, at if an Enforcement Notice is in effect, the request of Collateral Agent may designate the Security Controlled Deposit Account to which such funds are transferred.
(c) If an Enforcement Notice is in effect, such Lien Grantor will, if requested to do so by the Collateral Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Collateral Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to Accounts received or deposited in an account over which the Security Collateral Agent as provided hereinhas Control) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Collateral Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Collateral Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor The Grantors hereby covenants represent and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its warrant to the Lender, with respect to the Grantors' Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the Grantors, or rendition of services by the Grantors, in the ordinary course of the Grantors' businesses; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Lender, without any offset, deduction, defense, or counterclaim except those known to the Grantors and disclosed to the Lender pursuant to this Security Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Lender in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Lender by the Grantors will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of the Grantors described in each invoice will have been performed.
(b) Upon The Grantors shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence Grantors' businesses or extend or modify any Account. If the Grantors become aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $250,000, each Grantor hereby covenants including information regarding the Account Debtor's creditworthiness, the Grantors will promptly so advise the Lender and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that exclude such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAccount from Eligible Accounts.
(c) The Security Agent Grantors shall have not accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in Lender's written consent. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly Lender consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise not payment thereof and the amount or payment thereof, in the same manner and Grantors will promptly deliver such instrument to the same extent as such Grantor might have done. If Lender, endorsed by the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such appropriate Grantor to the Security Agent or Lender in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Lender. Regardless of the Accountsform of presentment, any Supporting Obligation or Collateral Support demand, notice of protest with respect thereto, the Grantors shall be received remain liable thereon until such instrument is paid in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral The Grantors shall notify the Lender promptly of all disputes and claims in excess of $5,000,000 that is evidenced by250,000 with any Account Debtor, and agree to settle, contest, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered adjust such dispute or claim at no expense to the Security Agent Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Lender's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Grantors' businesses when no Event of Default exists hereunder. The Grantors shall send the Lender a copy of each credit memorandum in excess of $250,000 as soon as issued, and the Grantors shall promptly report that credit on Borrowing Base Certificates submitted by them. The Lender may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Lender shall consider advisable and, in all cases, the Lender will credit the Grantor's Loan Account with the net amounts received by the Lender in payment of any Accounts.
(or its agent or designeee) appropriately indorsed If an Account Debtor returns any Inventory to the Security Agent or indorsed Grantors when no Event of Default exists, then the Grantors shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in blankthe appropriate amount. The Grantors shall immediately report to the Lender any return involving an amount in excess of $250,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to the Grantors when an Event of Default exists, the Grantors, upon the request of the Lender, shall: (i) hold the returned Inventory in trust for the Lender; (ii) segregate all returned Inventory from all of their other property; (iii) dispose of the returned Inventory solely according to the Lender's written instructions; and (iv) unless the amount of such credit or allowance is less than $500, not issue any credits or allowances with respect thereto without the Lender's prior written consent. All returned Inventory shall be subject to the Lender's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof returned Inventory and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinnot be Eligible Inventory.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it Except as otherwise provided in this Section 4.2, each Debtor shall keep and maintain continue to collect, at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accountsexpense, all merchandise returned amounts due or to become due to such Debtor with respect to Accounts of such Debtor and all other dealings therewith.
apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, each Debtor may take (b) Upon and, at Administrative Agent’s direction during the occurrence continuance of an any Event of Default that is continuingDefault, each Grantor hereby covenants and agrees that, at the request shall take) such commercially reasonable action as such Debtor or Administrative Agent may deem necessary or reasonably advisable to enforce collection of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that of such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Debtor. Administrative Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default that is continuing to notifyunder the Credit Agreement, or require any Grantor to notify, any to: (i) notify the Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts of such Debtor (or any other Person obligated thereon) of the Lien granted upon such Accounts in favor of Administrative Agent and to direct such Account Debtors and other Persons to make payment of all amounts due or to become due to any Grantor thereunder or otherwise render performance directly to Administrative Agent; (ii) exercise the Security Agent, (B) notify, or require a Grantor rights of any Debtor with respect to notify, each person maintaining a lockbox or similar arrangement to which the obligation of the Account Debtors under any Accounts have been directed Debtor to make payment or otherwise render performance to remit all amounts representing collections such Debtor and with respect to any property that secures the obligations of such Account Debtor or any other Person obligated on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent Collateral; and (Ciii) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in of such Accounts. After the same manner occurrence and during the continuance of an Event of Default and upon notice to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, Debtors all amounts and Proceeds (including checks and other instruments) received by such Grantor in a Debtor with respect of to the Accounts, any Supporting Obligation or Collateral Support Accounts shall be received in trust for the benefit of Administrative Agent (on behalf of the Security Agent hereunder and Secured Parties), shall be segregated from other funds of such Grantor Debtor and shall be forthwith paid over to Administrative Agent in the Grantor same form as so received (with any necessary endorsement) to be applied pursuant to the terms of the Credit Agreement. No Debtor shall not adjust, settle or compromise the amount or payment of any of its Accounts, or release wholly or partly any Account Debtor or obligor thereofDebtor, or allow any credit or discount thereon without (other than credits and discounts in the prior written consent ordinary course of business and the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess adjustment, settlement or compromise of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days ordinary course of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinbusiness).
Appears in 1 contract
Sources: Security Agreement (RealD Inc.)
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Administrative Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's historical collection practices. The costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Administrative Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will (i) at all times, to the occurrence of extent required by Section 10, cause such account to be a Controlled Deposit Account and (ii) if such account is a Controlled Deposit Account, cause the relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). Funds credited to any such account shall be transferred to such Deposit Account as designated by such Lien Grantor; provided that, if an Event of Default that is shall have occurred and be continuing, each the Administrative Agent may designate the Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Administrative Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Administrative Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Administrative Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Administrative Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Guarantee and Security Agreement (DealerTrack Holdings, Inc.)
Accounts. Each Borrower covenants, agrees, represents, and warrants, as to itself, as follows:
(a) Each Grantor hereby covenants With respect to such Borrower's Accounts: (i) each existing Account represents, and agrees that it shall keep each future Account will represent, a BONA FIDE sale or lease and maintain at its own cost delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and expense satisfactory each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms then in effect or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and complete records disclosed to the Agent and the Lenders as required by this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of its Accounts, including records an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower described in each invoice will have been performed.
(b) Upon Such Borrower shall not re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account outside the occurrence ordinary course of business. If such Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Such Borrower shall have not, without the right at Agent's prior written consent, accept any time following note or other instrument (except a check or other instrument for the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor other than Accounts which (i) do not exceed $1,000,000 individually and (ii) at the time of accepting such note or other instrument are not less than ninety (90) days past due from the date of the Security Agent’s Security Interest in original invoice therefor. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Borrower will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received endorsed by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Borrower to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accountsdemand, or release wholly or partly any Account Debtor or obligor thereofnotice of protest with respect thereto, or allow any credit or discount such Borrower shall remain liable thereon without the prior written consent of the Security Agentuntil such instrument is paid in full.
(d) With respect to any Accounts constituting Collateral in excess Such Borrower shall notify the Agent promptly of $5,000,000 that is evidenced byall offsets, deductions, defenses, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral counterclaims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit, or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits, and allowances made or given in the ordinary course of such Borrower's business when no Event of Default exists hereunder. The Borrower shall promptly send the Agent a copy of each credit memorandum in excess of $1,000,000. The Agent may at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors of any Borrower for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to a Borrower when no Event of Default exists, then such Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Agent any return involving an amount in excess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the UCCreturned Inventory. In the event any Account Debtor returns Inventory to a Borrower when an Event of Default exists, each Grantor shall take all steps necessary to give such Borrower, upon the Security Agent “control” (as defined in Section 9-105 request of the UCCAgent, shall: (i) over such Accounts hold the returned Inventory in trust for the Agent; (xii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory of any Borrower shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinreturned Inventory.
Appears in 1 contract
Accounts. No Corporate Credit Party has made, nor will any Credit Party make, any agreement with any Account Debtor for any extension of time for the payment of any Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by a Corporate Credit Party and such other compromises or settlements in the ordinary course of its business consistent with historical practice and as previously disclosed to Lender in writing. With respect to the Accounts pledged as collateral pursuant to any Credit Document (a) Each Grantor hereby covenants the amounts shown on all invoices, statements and agrees that it shall keep reports which may be delivered to the Lender with respect thereto are actually and maintain at its own cost absolutely owing to a Credit Party as indicated thereon and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
are not in any way contingent; (b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it no payments have been or shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any be made thereon except payments immediately delivered to the Security Agent Lender as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties required hereunder; and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall to each Corporate Credit Party’s knowledge all Account Debtors have the right at any time following the occurrence of an Event of Default that is continuing capacity to notify, or require any Grantor to notify, any Account Debtor contract. As of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts date of each Borrowing Base Certificate delivered to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notifyLender, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent listed thereon as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor an Eligible Account shall be forthwith (an Eligible Account and all Inventory listed thereon as Eligible Inventory shall be Eligible Inventory. Each Borrower shall notify Lender promptly and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy Days after obtaining knowledge thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect of any event or circumstance that to any such Accounts in existence on Borrower’s knowledge would cause Lender to consider any then existing Account or Inventory as no longer constituting an Eligible Account or Eligible Inventory, as the date hereof, on or prior to the date hereof and case may be; (ii) with respect of any material delay in any Borrower’s performance of any of its obligations to any such Accounts hereafter arisingAccount Debtor; (iii) of any assertion by an Account Debtor of any material claims, immediatelyoffsets or counterclaims; (iv) of any allowances, and in credits and/or monies granted by any event within ten days of such Grantor acquiring rights therein. With respect Borrower to any Accounts constituting Collateral in excess Account Debtor; (v) of $1,000,000 that constitutes “electronic chattel paper” under Article 9 all material adverse information relating to the financial condition of an Account Debtor; (vi) of any material return of goods; and (vii) of any loss, damage or destruction of any of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinCollateral.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its AccountsNo Borrower will, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory or will permit any Restricted Subsidiary party to the Security AgentAgreement to instruct any Obligor to remit any Collections to any Person, all Chattel Paper, Instruments and other items evidencing Accounts (account or lock-box other than a Lock-Box Bank, a Lock-Box Account or a Lock-Box; PROVIDED, HOWEVER, that a Borrower that is the Obligor on another Borrower's Receivable may make payments of Collections on such Receivable to a Deposit Account of such other Borrower so long as there has been no incremental borrowing on a net basis as a result of such remittance. No Borrower will, or will permit any delivered such Restricted Subsidiary to permit funds other than Collections of Receivables to be deposited into any Lock-Box, Lock-Box Account or (except as permitted by SECTION 4.5(c)) the Master Collection Account. At any time, if funds other than Collections are deposited into any such Lock-Box, Lock-Box Account or (except as permitted by SECTION 4.5(c)) the Master Collection Account, such Borrower shall promptly identify such funds for segregation therefrom, and after providing the Collateral Agent with reasonable evidence of the rightful ownership of such funds, shall instruct the Collateral Agent to transfer such funds to such rightful owners. No Borrower will, or will permit any such Restricted Subsidiary to, commingle Collections or other funds to which Collateral Agent is entitled hereunder with any other funds. The Borrower shall instruct each Lock-Box Bank to transfer all Collections at the end of each Business Day to the Security Master Collection Account. No Borrower will, or will permit, any such Restricted Subsidiary to add any Lock-Box Bank, any Lock-Box, or any Lock-Box Account to those listed on EXHIBIT 1.1(b) unless Administrative Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Collateral Agent shall have consented thereto (which consent shall not be unreasonably withheld) and received an executed and acknowledged copy of a Lock-Box Letter substantially in the right at any time following the occurrence form of an Event of Default that is continuing EXHIBIT 1.1(c) (with such changes as are acceptable to notifyAdministrative Agent and Collateral Agent) to each new Lock-Box Bank with respect thereto. No Borrower will, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of will permit any such Accounts and to adjustRestricted Subsidiary to, settle terminate any Lock-Box Bank or compromise the amount Lock-Box or payment thereof, in the same manner and to the same extent as such Grantor might close any Lock-Box 113 Account or Lock-Box unless Collateral Agent shall have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith at least thirty (and in any event within two Business Days30) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds days prior notice of such Grantor and termination or such shorter period as the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentCollateral Agent may agree to.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Revolving Credit Agreement (Huntsman Polymers Corp)
Accounts. Each Borrower covenants, agrees, represents, and warrants, as to itself, as follows:
(a) Each Grantor hereby covenants With respect to such Borrower's Accounts: (i) each existing Account represents, and agrees that it shall keep each future Account will represent, a bona fide sale or lease and maintain at its own cost delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and expense satisfactory each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms then in effect or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and complete records disclosed to the Agent and the Lenders as required by this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of its Accounts, including records an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower described in each invoice will have been performed.
(b) Upon Such Borrower shall not re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account outside the occurrence ordinary course of business. If such Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Such Borrower shall have not, without the right at Agent's prior written consent, accept any time following note or other instrument (except a check or other instrument for the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor other than Accounts which (i) do not exceed $1,000,000 individually and (ii) at the time of accepting such note or other instrument are not less than ninety (90) days past due from the date of the Security Agent’s Security Interest in original invoice therefor. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Borrower will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received endorsed by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Borrower to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accountsdemand, or release wholly or partly any Account Debtor or obligor thereofnotice of protest with respect thereto, or allow any credit or discount such Borrower shall remain liable thereon without the prior written consent of the Security Agentuntil such instrument is paid in full.
(d) With respect to any Accounts constituting Collateral in excess Such Borrower shall notify the Agent promptly of $5,000,000 that is evidenced byall offsets, deductions, defenses, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral counterclaims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit, or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits, and allowances made or given in the ordinary course of such Borrower's business when no Event of Default exists hereunder. The Borrower shall promptly send the Agent a copy of each credit memorandum in excess of $1,000,000. The Agent may at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors of any Borrower for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to a Borrower when no Event of Default exists, then such Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Agent any return involving an amount in excess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the UCCreturned Inventory. In the event any Account Debtor returns Inventory to a Borrower when an Event of Default exists, each Grantor shall take all steps necessary to give such Borrower, upon the Security Agent “control” (as defined in Section 9-105 request of the UCCAgent, shall: (i) over such Accounts hold the returned Inventory in trust for the Agent; (xii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory of any Borrower shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinreturned Inventory.
Appears in 1 contract
Accounts. The Assignor and the Company agree as follows regarding the Eligible Accounts accepted by Company:
(a) Each Grantor hereby covenants Upon the assignment or transfer of any Eligible Account accepted by Company, Assignor shall issue an invoice or voucher to or enter into a contract with the Account Debtor. The Assignor shall:
(i) deliver to the Company a copy of each declaration, application, invoice, voucher or contract, and agrees a fully executed SCHEDULE, and documented confirmation that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accountseach declaration, including records of application, invoice, voucher or contract has been submitted to the appropriate court or office,
(ii) stamp or print conspicuously on all payments received declarations, applications, invoices, vouchers, or contracts that the Accounts represented by such have been assigned to Company, and all credits granted on such Accountsrights to payment thereunder have been assigned to the Company, all merchandise returned and all other dealings therewith.and
(b) Upon All fee declarations/invoices shall be clearly marked to provide notification to the occurrence of an Event of Default Account Debtor that the Account is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall payable by Account Debtor directly to Company to ▇▇▇▇ conspicuously▇▇▇▇▇▇ ▇▇▇ ▇▇▇, in form and manner reasonably satisfactory to the Security Agent▇▇▇▇▇▇▇▇▇▇, all Chattel Paper▇▇., Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) ▇▇▇▇▇. All payments made with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due respect to any Grantor thereunder Assigned Account purchased by Company hereunder shall be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have doneCompany. If the Security Agent notifies a Grantor Assignor should receive full or partial payment on any Assigned Account, the Assignor shall immediately deliver such payment to the Company. The Assignor agrees that it has elected to collect all such payments or proceeds while in the Accounts in accordance with hands or possession of the preceding sentenceAssignor, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited held by such Grantor in the exact form receivedAssignor as a fiduciary of Company, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds Company.
(c) Provide Company with such documents which the Company may reasonably require to further evidence the assignment of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentEligible Account.
(d) With respect The Company's granting of extensions to Account Debtors or the suffering of any delay or breach by the Account Debtors in connection with the Accounts constituting Collateral shall in excess no way be construed as a waiver of $5,000,000 that is evidenced byany subsequent delay or breach or of the rights of the Company against the Assignor and the Account Debtors.
(e) The Company shall not, under any circumstances, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days whatsoever, have any liability for any error, omission or delay of any kind occurring in the settlement, collection or payment of any Eligible Account or of any instrument received in full or partial payment thereof or in dealing with any lien, security or guaranty of any such Grantor acquiring rights thereinAccount.
(f) The Assignor shall not, without the express written consent of the Company, release, compromise or adjust any Assigned Account purchased hereunder, or any guaranty, security or lien therefore, or grant any discounts, allowances or credits thereon, or bring any suit or enforce payment thereof.
(g) The Company shall have the right, but not the obligation, at any time, at its option, to collect any or all of the Assigned Accounts purchased hereunder, directly or through its agents or attorneys. With respect The Company shall also have the right, but not the obligation, upon default by Assignor, to collect any or all of Assignor's accounts, directly or through its agents or attorneys. For such purposes, the Assignor hereby irrevocably makes, constitutes and appoints the Company its true and lawful attorney in fact with full power to sell, transfer, set over, comprise, discharge or extend the whole or any part of any such Account or Assigned Account as appropriate, and to do all acts or things necessary or incidental thereto, including but not limited to, the right to bring suit, endorse or sign the Assignors signature and draw funds directly from any bank account of the Assignor, contact and change any mailing address or payment method or routing information or wire transfer information, from a debtor of the Assignor, notify any court or debtor of the Assignors obligation and offset that obligation with any account receivables. The Company has no obligation to take the actions authorized by this power of attorney.
(h) The Assignor agrees that the terms of this Agreement creates a fiduciary duty owed by Assignor to the Company. It is the responsibility of Assignor to protect the Company’s interest in each Eligible Account. Assignor shall use Assignor’s best efforts to insure that each Eligible Account/declaration is approved by the judge presiding over such proceeding, and the same is timely processed through the respective court system and state personnel. Company does not expressly or implicitly assume any contractual or other duty, obligation or liability of Assignor to Account Debtor or to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on other person or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinentity.
Appears in 1 contract
Sources: Assignment Agreement
Accounts. (a) Each If and so long as any ABL Credit Agreement is in effect and contains ABL Cash Management Requirements, each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithas follows.
(bi) From and after the Issue Date, each Grantor agrees to deposit all Daily Receipts into the DDAs (as defined in the ABL Credit Agreement) on a daily basis.
(ii) From and after the Issue Date, the Grantors agree to transfer, or cause to be transferred, all Cash Receipts (as defined in the ABL Credit Agreement)on deposit in any DDA (except, such amounts necessary (i) for the payment of routine bank service fees and (ii) to reconcile deposit balances) to a Blocked Account. Such transfers shall occur no less than three (3) times a week.
(iii) Except upon the occurrence and during the continuance of an Event of Default, the Company may instruct each bank or other financial institution at which the Grantors maintain a Blocked Account (each, a “Blocked Account Bank”) as to the application of any Cash Receipts contained in any Blocked Account if and so long as such application and use does not violate, or result in a Default under, the Indenture and the other Note Documents.
(iv) Upon the occurrence and during the continuance of an Event of Default, the Company may continue to instruct each Blocked Account Bank as to the application of any Cash Receipts until and unless the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian shall notify the Company and the Grantors with respect to each Blocked Account that such account shall be closed and/or under the exclusive dominion and control of the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or Custodian with funds therein held subject to the rights of the Collateral Agent hereunder and under the other Note Documents. During the continuance of an Event of Default that is continuingand upon and after such notice, each no Grantor hereby covenants and agrees that, at shall have any right or power to withdraw any funds from any Blocked Account without the request prior written consent of the Security Collateral Agent or its agent(including the ABL Collateral Agent), it nominee or custodian.
(v) All taxes payable on the income of the cash and cash equivalents upon any disposition there of shall ▇▇▇▇ conspicuouslybe paid by Grantors and the Collateral Agent shall have no obligations with respect thereto.
(vi) In the event that a Grantor directly receives any remittances on Receivables, in form and manner reasonably satisfactory notwithstanding the arrangements for payment directly into the Blocked Accounts pursuant to the Security AgentSection5.02, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent remittances shall be held for the benefit of the Collateral Agent and the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor Grantor, subject to the Security Interest granted hereby, and the such Grantor shall not adjustcause such remittances and payments to be deposited into a Blocked Account as soon as practicable after such Grantor’s receipt thereof. After the occurrence of an Event of Default, settle upon the notice by the Collateral Agent or compromise its agent (including the amount ABL Collateral Agent), nominee or payment of any Accountscustodian to the Grantors, or release wholly or partly any such remittances and payments shall be deposited into the Agent’s Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentas soon as practicable after such Grantor’s receipt there of.
(dvii) With respect All payments by any Grantor into any Blocked Account or the Agent’s Account pursuant to this Section5.01 or Section5.02, whether in the form of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, shall be deposited in the relevant Blocked Account or Agent’s Account in precisely the form in which received (but with any Accounts constituting endorsements of such Grantor necessary for depositor collection), and until they are so deposited such payments shall be held in trust by such Grantor for the benefit of the Collateral Agent subject to the Security Interest granted hereby.
(b) If ABL Cash Management Requirements are not in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Papereffect, each Grantor shall cause each originally executed copy thereof deposit all Daily Receipt son a daily basis, and shall instruct all Account Debtors to be delivered make payment, into a Deposit Account subject to a Blocked Account Agreement or a DACA (or if and to the Security Agent extent permitted by Section4.16(e)(ii)of this Agreement into a De Minimis Deposit Account), and all amounts received by the Grantors in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash be deposited on a daily basis in a Deposit Account subject to a Blocked Account Agreement or a DACA (or its agent or designee) appropriately indorsed if and to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinextent permitted by Section4.16(e)(ii)of this Agreement into a De Minimis Deposit Account).
Appears in 1 contract
Sources: Security Agreement (Great Atlantic & Pacific Tea Co Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon In the occurrence case of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the USD Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof Effective Date, the Borrower shall establish each USD Account in the name of the Borrower, and each USD Account shall be established with the Securities Intermediary and (iii) with respect to any such in the case of Non-USD Accounts, including the Accounts hereafter arisingdenominated in NZD, immediatelyas soon as practicable following the Effective Date, the Borrower shall establish each Non-USD Account in the name of the Borrower, and each Non-USD Account shall be established with the Securities Intermediary. Funds held in the Collection Account shall be applied by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any event within ten days time a Responsible Officer of the Collateral Agent obtains actual knowledge that any Account denominated in Dollars ceases to be an Eligible Account (with notice to the Servicer, the Agent and each Lender Agent), then the Borrower shall cause the Servicer to transfer such Grantor acquiring rights thereinaccount to another institution such that such account shall meet the requirements of an Eligible Account. With respect to any Non-USD Accounts, the amounts therein shall be held in a non-interest bearing account established with the Securities Intermediary. Funds held in the Non-USD Accounts constituting by the Securities Intermediary need not be segregated from other funds except to the extent required by law. It is hereby understood and agreed that no Non-USD Account for any Eligible Currency other than Dollars shall be available for the receipt or payment of any amounts or other Collateral denominated in excess such applicable Eligible Currency until such time as the Securities Intermediary notifies the Borrower, the Servicer and the Agent that such Non-USD Account for such Eligible Currency is operational and available to receive or pay such amounts and other Collateral denominated in such Eligible Currency and the Securities Intermediary shall have no liability for any failure or delay in the receipt or payment of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined such amounts or other Collateral denominated in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or an Eligible Currency other than Dollars prior to the date hereof that the Securities Intermediary notifies the Borrower, the Servicer and (y) the Agent that such Non-USD Account with respect to such Eligible Currency is operational and available for deposits and payments. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn at the direction of the Borrower or at the direction of the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Principal Collections Account if, after giving effect to such Accounts hereafter arisingwithdrawal, within 30 days the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, the Borrower shall cause the Servicer to forward any draw request made by an Obligor under a Variable Funding Asset, along with wiring instructions for the applicable Obligor, to the Collateral Agent (with a copy to the Agent and each Lender Agent) along with a written instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the conditions to fund such draw are satisfied (which certification shall be deemed given upon delivery of any instruction order to withdraw such funds from the Unfunded Exposure Account), and the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. On the last day of the Revolving Period, the Borrower shall fund amounts in each respective currency to the respective Unfunded Exposure Account in an aggregate amount equal to the Unfunded Exposure Amount. All funding requests associated with the Unfunded Exposure Amount shall be made from the Unfunded Exposure Account after the end of the Revolving Period. All uninvested amounts on deposit in the USD Unfunded Exposure Account shall be invested in Permitted Investments selected by the Servicer on each Distribution Date (or pursuant to standing instructions provided by the Servicer). Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset and, as of the date of such Grantor acquiring rights thereinreceipt (and after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount, the Borrower shall cause the Servicer to direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Equity Shortfall.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund)
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Servicer shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3(a). If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the Servicer shall keep transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account plus, solely during the Revolving Period, the undrawn portion of the Commitments, is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and maintain at its own cost a certification that the conditions to fund such draw are satisfied, and expense satisfactory the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of the date of such receipt (and complete records after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of its Accountssuch shortfall, including records in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of all payments received such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.(b) the Unfunded Exposure Shortfall. USActive 58353885.2
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuouslyas directed by the Servicer in writing (or, in form and manner reasonably satisfactory if the Servicer fails to the Security Agentprovide such direction, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and invested in any event within two Business Days) deposited standing investment separately identified by such Grantor the Servicer and described in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
clause (d) With respect to any Accounts constituting Collateral of the definition of Permitted Investments), in excess of $5,000,000 Permitted Investments that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Accrual Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Servicer, the Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days of such Grantor acquiring Account, except to the extent explicitly set forth herein (including the withdrawal rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of for the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined Unfunded Exposure Account set forth in Section 9-105 8.1(a)). Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on Principal Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect -84- USActive 58353885.2 transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base, the Maximum Availability and the Minimum Equity Test.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Accounts. (a) Each Grantor hereby covenants and agrees The Territory, to the extent that it shall keep directly or indirectly owned any Acquired Assets or Restricted Assets (other than through its ownership of Sub) prior to the Closing, hereby irrevocably constitutes and maintain at appoints, effective as of the Closing, each of Sub and LuxCo and assigns it as true and lawful attorney of the Territory and its own cost Subsidiaries with full power of substitution (i) to collect in a reasonable manner consistent with reasonable past practice for the account of Sub or LuxCo any Acquired Assets and expense satisfactory Restricted Assets and complete records of its Accounts(ii) to institute and prosecute all proceedings which Sub, including records of all payments received LuxCo and their respective Subsidiaries may in their sole discretion deem proper in order to enforce any right, title or interest in, to or under the Acquired Assets and Restricted Assets, and to defend or compromise any and all credits granted on such Accountsactions, all merchandise returned suits or proceedings in respect of the Acquired Assets and all other dealings therewithRestricted Assets.
(b) Upon All payments and reimbursements received by the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request Territory or its Subsidiaries or any Affiliate thereof in connection with or arising out of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory Acquired Assets or Assumed Liabilities (without regard to the Security Agenteffect of, all Chattel Paperor any reference to, Instruments and other items evidencing Accounts (other than any delivered to Section 9.1) after the Security Agent as provided herein) with an appropriate reference to the fact that Closing shall be held by such Accounts have been collaterally assigned to the Security Agent person in trust for the benefit of LuxCo and, promptly upon receipt by such person of any such payment or reimbursement such person shall pay over to LuxCo the Secured Parties and that the Security Agent has a Security Interest thereinamount of such payment or reimbursement without right of setoff.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, All payments and reimbursements received by LuxCo or require any Grantor to notify, any Account Debtor its Affiliates in connection with or arising out of the Security Agent’s Security Interest in Excluded Assets or Excluded Liabilities after the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received Closing Date shall be held by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received person in trust for the benefit of the Security Agent hereunder and Territory, and, promptly upon receipt by such person of any such payment or reimbursement, such person shall be segregated from other funds pay over to the Territory the amount of such Grantor and the Grantor shall not adjust, settle payment or compromise the amount or payment reimbursement without right of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentsetoff.
(d) With respect The Territory covenants and agrees that it shall use reasonable best efforts to, and shall use reasonable best efforts to cause its Subsidiaries to, promptly forward to LuxCo any Accounts constituting Collateral in excess mail (physical, electronic or otherwise), facsimile or telephone inquiries of $5,000,000 that is evidenced byactual or potential clients, customers, suppliers and vendors of or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered relating to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereofConsulting Business, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arisingincluding, immediatelywithout limitation, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereincustomer orders.
Appears in 1 contract
Sources: Rollup Agreement (PWCC LTD)
Accounts. (a) Each Grantor The Borrower and each Guarantor hereby covenants represent and agrees that it shall keep warrant to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to the Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a BONA FIDE sale or lease and delivery of goods by the Borrower or the applicable Guarantor, or rendition of services by the Borrower or the applicable Guarantor, in the ordinary course of the Borrower's or such Guarantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to the Borrower or the applicable Guarantor and disclosed to the Agent and the Lenders pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by the Borrower or the applicable Guarantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of the Borrower or the applicable Guarantor described in each invoice will have been performed.
(b) Upon Neither the occurrence Borrower nor any Guarantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in the Borrower's or the applicable Guarantor's business or extend or modify any Account. If the Borrower or any Guarantor becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at the request of Borrower will promptly so advise the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent Neither the Borrower nor any Guarantor shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in 's written consent which shall not be unreasonably withheld or delayed. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle not payment thereof and the Borrower or compromise the amount or payment thereof, in the same manner and applicable Guarantor will promptly deliver such instrument to the same extent as such Grantor might have done. If Agent, endorsed by the Security Agent notifies a Grantor that it has elected to collect Borrower or the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor applicable Guarantor to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation demand or Collateral Support notice of protest with respect thereto, the Borrower or the applicable Guarantor shall be received remain liable thereon until such instrument is paid in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral in excess The Borrower shall notify the Agent promptly of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof all disputes and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral claims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 with any Account Debtor, and the Borrower and each Guarantor agrees to settle, contest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the UCCBorrower's or the applicable Guarantor's business when no Event of Default exists hereunder. The Borrower shall send the Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued. The Agent may at all times when an Event of Default exists hereunder, each Grantor settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall take consider advisable and, in all steps necessary cases, the Agent will credit the Borrower's Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an Account Debtor returns any Inventory to give the Security Borrower or any Guarantor when no Event of Default exists, then the Borrower or the applicable Guarantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrower shall immediately report to the Agent “control” (as defined any return involving an amount in Section 9-105 excess of $500,000. Each such report shall indicate the reasons for the returns and the locations and condition of the UCCreturned Inventory. In the event any Account Debtor returns Inventory to the Borrower or any Guarantor when an Event of Default exists, the Borrower or the applicable Guarantor, upon the request of the Agent, shall: (i) over such Accounts hold the returned Inventory in trust for the Agent; (xii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinreturned Inventory.
Appears in 1 contract
Sources: Loan and Security Agreement (Fruit of the Loom LTD)
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Borrower shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent for application by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer, the Facility Agent and each Agent), then the Borrower shall keep cause the Servicer to transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower or at the direction of the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, the Borrower shall cause the Servicer to forward any draw request made by an Obligor under a Variable Funding Asset, along with wiring instructions for the applicable Obligor, to the Collateral Agent (with a copy to the Facility Agent and maintain at its own cost each Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and expense satisfactory a certification that the conditions to fund such draw are satisfied, and complete records the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of its Accountsthe Revolving Period, including records if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset and, as of all payments received the date of such receipt (and all credits granted after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of such Accountsshortfall, all merchandise returned in each case, the “Unfunded Exposure Shortfall”), the Borrower shall cause the Servicer to direct the Collateral Agent to and all other dealings therewiththe Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Laws, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall ▇▇▇▇ conspicuouslyremain uninvested), in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact Permitted Investments that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Collection Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent or the Securities Intermediary be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instruction to the Collateral Agent. The Collateral Agent or the Securities Intermediary and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Securities Intermediary’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any event within ten days rights of such Grantor acquiring rights therein. With direction or withdrawal, with respect to any Accounts constituting Collateral amounts held in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCCCollection Account, each Grantor shall take all steps necessary except to give the Security Agent “control” (as defined extent explicitly set forth in Section 9-105 8.1(a), Section 8.1(b), Section 8.2, or Section 8.3(b). Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on or prior to the date hereof and Principal Collection Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base and the Minimum Equity Condition.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Accounts. (ai) Each Grantor hereby covenants All Accounts which are at any time included in the Borrowing Base or which are reflected on the Borrower’s or any other Loan Party’s financial statements delivered to the Lender are genuine, in all respects what they purport to be, have not been reduced to any judgment, are evidenced by an executed original agreement, contract or document, and agrees that it shall keep represent bona fide transactions completed in accordance with the terms and maintain at its own cost and expense satisfactory and complete records conditions of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewithany related document.
(bii) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory The Accounts have not been sold or pledged to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (any Person other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinLender.
(ciii) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly Except as disclosed to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items Lender from time to time sent to in writing, neither the Borrower, any Subsidiary or deposited in such lockbox or any other arrangement directly to the Security Agent and (C) enforce, at the expense Loan Party has any knowledge of any Grantor, collection fact or circumstance which could reasonably be expected to impair the validity or collectibility of any such of the Accounts and to adjust, settle or compromise the amount or payment thereof, included in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor Borrowing Base that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or aggregate are material in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentamount.
(div) With respect to any Accounts constituting Collateral Healthcare Receivable included in excess of $5,000,000 that is evidenced bythe Borrowing Base, (1) the care or constitutesGoods described therein have been provided and was or were necessary for the Patient, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered (2) to the Security Agent extent applicable, all billing complies with Applicable Laws, including without limitation, all Applicable Laws of Medicare and Medicaid, and (3) there are no disputes, proceedings or its agent or designee) appropriately indorsed audits currently pending or, to the Security Agent or indorsed in blank: (i) knowledge of the Loan Parties, threatened, involving any Third Party Payors with respect to any such Accounts Provider’s operations, including specifically its billing practices, with an amount in existence on the date hereofcontroversy, on or prior to the date hereof and (ii) with respect to all such disputes, proceedings or audits, which could reasonably be expected to have a Material Adverse Effect.
(v) The Account Debtor primarily liable for the payment of each Account is the Account Debtor for such Account as set forth on the Monthly Report most recently delivered to the Lender.
(vi) The fees charged for the Goods and services giving rise to each Healthcare Receivable are consistent with the usual, customary and reasonable fees charged by other medical providers for the same or similar goods and services in the related Provider’s community and the community in which the Patient resides.
(vii) The insurance policy underlying any such Accounts hereafter arising, immediately, and Healthcare Receivable or in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral which such Account arose was in excess of $1,000,000 that constitutes “electronic chattel paper” full force and effect and applicable to the Patient at the time the Goods or services under Article 9 which such Account arose were provided to the Patient.
(viii) As of the UCCAgreement Date, each Grantor shall take at least 90% of all steps necessary Eligible Accounts (determined without regard to give the Security Agent “control” clause (as defined in Section 9-105 u) of the UCCdefinition of Eligible Accounts) over such Accounts (x) with respect to any such Accounts in existence on were originated by the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinMaterial Providers.
Appears in 1 contract
Sources: Credit and Security Agreement (Five Star Quality Care Inc)
Accounts. (a) Each Grantor hereby covenants On or prior to the Closing Date, the Servicer shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the Servicer shall keep transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the end of the Revolving Period, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and maintain at its own cost a certification that the conditions to fund such draw are satisfied, and expense satisfactory the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of the date of such receipt (and complete records after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of its Accountssuch shortfall, including records in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of all payments received such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and all credits granted on such Accounts, all merchandise returned and all other dealings therewith(b) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall ▇▇▇▇ conspicuouslyremain uninvested), in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact Permitted Investments that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Collection Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent, the Borrower and/or the Servicer, as applicable, with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. The Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days of such Grantor acquiring Account, except to the extent explicitly set forth herein (including the withdrawal rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of for the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined Unfunded Exposure Account set forth in Section 9-105 8.1(a)).
1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the UCCAccounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) over such Accounts The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on Principal Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base and the Maximum Availability.
Appears in 1 contract
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp)
Accounts. (a) Each Grantor hereby covenants The Escrow Agent shall maintain separate book accounts with respect to each of the Sellers, which book accounts shall initially be credited with the amounts of Common Stock deposited with the Escrow Agent at the Closing, as set forth on Schedule 1. [Prior to making any disbursement from the Escrow Fund, the Escrow Agent shall prepare, and agrees that it shall keep distribute to each of the Sellers, statement of the then-current balances in each of the separate book accounts.] All other income, interest, increments and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records gains of all payments received kinds from the Escrow Fund (or losses related thereto) shall be allocated among the book accounts pro rata based upon the total Common Stock balances of each such account, and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
weighted (b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner if and to the same extent as appropriate) to reflect sales of any shares of the Common Stock during the period with respect to which the allocation is being calculated. The Sellers shall be jointly and severally liable for the fees and expenses of the Escrow Agent pursuant to paragraph 11 hereof. As among themselves, the Sellers shall be responsible only for their pro rata portion of the Escrow Agent's fees and expenses. In the case of amounts of reimbursement in respect of any Pittencrieff Losses by Seller under Section 1 of the Sellers' Contribution Agreement, amounts paid or disbursed to any Seller under paragraph 5 hereof shall be limited to the amount of, and shall be allocated solely to, such Grantor might have doneSellers' book account. If Upon termination of this Agreement, or release of any portion of the Security Agent notifies a Grantor that it has elected Escrow Fund, each of the Sellers shall receive from the Escrow Fund an amount equal to collect its then-current balance in its book account; and if less than the Accounts full amount in accordance the Escrow Fund is then being distributed, the amount to be distributed shall be allocated among the book accounts of the Sellers, pro rata in proportion to the number of shares of common stock of New PCI held by each Seller at the Closing with appropriate adjustments to reflect allocations to individual Sellers pursuant to the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent. 8.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Escrow Agreement (FMR Corp)
Accounts. (a) Each Grantor hereby covenants With respect to its Accounts whether now existing or hereafter created or acquired and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuingwheresoever located, each Grantor hereby represents, warrants and covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Administrative Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.that:
(ci) The Security Agent Each Grantor shall have the right at any time following the occurrence keep accurate and complete records of an Event of Default that is continuing to notify, or require any Grantor to notify, any its Accounts in accordance with GAAP (“Account Debtor of the Security Agent’s Security Interest in the Accounts Records”) and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited upon the reasonable request of the Administrative Agent such Grantor shall provide the Administrative Agent with a schedule of Accounts in such lockbox or other arrangement directly form and substance reasonably acceptable to the Security Administrative Agent and (C) enforce, at the expense of any Grantor, collection of any such describing all Accounts and to adjust, settle created or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received acquired by such Grantor (“Schedule of Accounts”); provided, however, that such Grantor’s failure to execute and deliver any such Schedule of Accounts shall be forthwith (not affect or limit the Administrative Agent’s security interest or other rights in and in to any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust Accounts for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and Secured Parties. If reasonably requested by the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Administrative Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof furnish the Administrative Agent with copies of proof of delivery and other documents relating to the Accounts so scheduled, including without limitation repayment histories and present status reports (collectively, “Account Documents”) and such other matter and information relating to the status of then existing Accounts as the Administrative Agent shall reasonably request.
(ii) All Account Records and Account Documents are and shall at all times be located only at such Grantor’s current chief executive office as set forth on Schedule 7(f) attached hereto, such other locations as are specifically identified on Schedule 7(f) attached hereto as an “Account Documents location,” or as to which the Grantor has complied with Section 7(f) hereof.
(iii) The Accounts reflected on any Schedule of Accounts, Monthly Report or Compliance Certificate are genuine, and are in all respects what they purport to be.
(iv) The Accounts reflected on any Schedule of Accounts, Monthly Report or Compliance Certificate cover bona fide sales, leases, licenses or other dispositions of property usually dealt in by such Grantor, or the rendition by such Grantor of services, to an Account Debtor in the ordinary course of business, except as otherwise reflected on such Schedule of Accounts, Monthly Report or Compliance Certificate.
(v) The amounts of the face value of any Account shown or reflected on any Schedule of Accounts, Monthly Report or Compliance Certificate delivered to the Security Agent Administrative Agent, as of the date stated in such Schedule of Accounts, Monthly Report or Compliance Certificate, are actually owing to such Grantor and are not contingent for any reason (except as otherwise reflected in such Schedule of Accounts, Monthly Report or its agent Compliance Certificate) and such Grantor has not made any agreement with any Account Debtor thereunder for any deduction therefrom, except as may be stated in the Schedule of Accounts, Monthly Report or designeeCompliance Certificate and reflected in the calculation of the face value of each respective invoice related thereto.
(vi) appropriately indorsed As of the date stated in any Schedule of Accounts, Monthly Report or Compliance Certificate delivered to the Security Agent Administrative Agent, there are no facts, events, or indorsed in blank: (i) with respect occurrences known to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect pertaining particularly to any Accounts constituting Collateral which are reasonably expected to materially impair in excess any way the validity, collectability or enforcement of $1,000,000 Accounts that constitutes “electronic chattel paper” under Article 9 would reasonably be likely, in the aggregate, to be of material economic value, or in the aggregate materially reduce the amount payable thereunder from the amount of the UCCinvoice face value shown on any Schedule of Accounts, each Grantor shall take all steps necessary Monthly Report or Compliance Certificate delivered to give the Security Administrative Agent “control” with respect thereto.
(as defined in Section 9-105 vii) The property or services giving rise thereto are not, and were not at the time of the UCC) over such Accounts (x) with respect sale or performance thereof, subject to any such Accounts in existence on Lien, claim, encumbrance or security interest, except those of the date hereof, on or prior to Administrative Agent for the date hereof benefit of Secured Parties and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinPermitted Liens.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense or counterclaim except those known to such Grantor and disclosed to the Agent and the Lenders pursuant to this Security Agreement in respect of offsets, deductions, defenses or counterclaims involving an amount greater than (x) $150,000, at any time that Borrower Base Certificates are required to be delivered on a weekly basis pursuant to the Credit Agreement or (y) $500,000, at any other time; (iii) no payment will be received with respect to any Account of such Grantor, and no credit, discount or extension or agreement therefor will be granted on any Account of such Grantor, except as reported to the Agent and the Lenders in Borrowing Base Certificates delivered by such Grantor in accordance with the Credit Agreement or otherwise reported by such Grantor in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithGrantor described in each invoice will have been performed.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If a Grantor becomes aware of any matter adversely affecting the occurrence collectibility in any material respect of any of its Accounts or the Account Debtor therefor involving an Event of Default that is continuing, each Grantor hereby covenants and agrees thatamount greater than (x) $150,000, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory any time that Borrowing Base Certificates are required to be delivered on a weekly basis pursuant to the Security Credit Agreement or (y) $500,000, at any other time, including information regarding the Account Debtor's creditworthiness, such Grantor will promptly so advise the Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have No Grantor shall, except to the right at any time following extent done in the occurrence ordinary course of an its business and in accordance with sound business judgment and provided that no Event of Default that is continuing to notifyshall have occurred and be continuing, accept any note or require any Grantor to notify, any Account Debtor of other instrument (except a check or other instrument for the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make immediate payment of all amounts due or to become due money) with respect to any Grantor thereunder directly of its Accounts without the Agent's written consent; provided, however, such Accounts shall be excluded from such Grantor's Eligible Accounts. If the Agent consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise not payment thereof and the amount or payment thereof, in the same manner and Grantor will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Agent. Regardless of the Accountsform of presentment, any Supporting Obligation demand or Collateral Support shall be received in trust for notice of protest with respect thereto, the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the applicable Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount remain liable thereon without the prior written consent of the Security Agentuntil such instrument is paid in full.
(d) With respect to any Accounts constituting Collateral Each Grantor shall notify the Agent promptly of all disputes and claims in excess of (x) $5,000,000 150,000, at any time that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof Borrowing Base Certificates are required to be delivered on a weekly basis pursuant to the Security Agent Credit Agreement or (y) $500,000, at any other time, with any Account Debtor, and agrees to settle, contest or its agent adjust such dispute or designee) appropriately indorsed claim at no expense to the Security Agent or indorsed any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in blankthe ordinary course of the applicable Grantor's business when no Event of Default exists. Each Grantor shall send the Agent a copy of each credit memorandum in excess of (x) $150,000, at any time that Borrowing Base Certificates are required to be delivered on a weekly basis pursuant to the Credit Agreement or (y) $500,000, at any other time, as soon as issued, and such Grantor, if a Borrower, shall promptly report that credit on Borrowing Base Certificates submitted by it. The Agent may, at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the applicable Grantor's Loan Account with the net amounts received by either of the Agent in payment of any such Grantor's Accounts.
(e) If an Account Debtor returns any Inventory to a Grantor when no Event of Default exists, then such Grantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. Each Grantor shall immediately report to the Agent any return involving an amount in excess of (x) $100,000, at any time that Borrowing Base Certificates are required to be delivered on a weekly basis pursuant to the Credit Agreement or (y) $500,000, at any other time. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to a Grantor when an Event of Default exists, such Grantor, upon the request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof returned Inventory and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 returned Inventory shall not be Eligible Inventory of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinapplicable Grantor.
Appears in 1 contract
Sources: Security Agreement (Gentek Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its AccountsNotwithstanding anything set forth in this Loan Agreement or any other Loan Document to the contrary, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon upon the occurrence and during the continuance of an Event of Default that is continuingDefault, the rights of Obligor and each Grantor hereby covenants and agrees that, at the request of the Security every other Person (excluding Lenders and Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory ) to withdraw funds with respect to the Security AgentAccounts shall immediately terminate, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent except as provided herein) with an appropriate reference to in the fact that foregoing parenthetical, no such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Person except Agent shall have the right at make any time following further withdrawal or disbursement therefrom without Agent’s prior consent. Upon the occurrence and during the continuance of an Event of Default that is continuing to notifyDefault, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due addition to any Grantor thereunder directly to other rights or remedies of Agent hereunder or under the Security Agentother Loan Documents, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items Agent may from time to time sent to or deposited in designate such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) signatories with respect to any such the Accounts as Agent may elect, and may make or authorize withdrawals from the Accounts to pay the Obligations in existence on the date hereof, on whole or prior in part and/or to the date hereof and (ii) make expenditures with respect to the Property as Agent may deem necessary or appropriate, including expenditures on account of the maintenance, replacement, restoration, operation or leasing of all or any portion of the Property. Upon the occurrence and during the continuation of an Event of Default, in addition to any other rights or remedies of Agent hereunder or under the other Loan Documents, each of the depositories for the Accounts is hereby authorized and directed by Obligor to make payment directly to or at the direction of Agent of the funds in or credited to the Accounts or such part thereof as Agent may request, and such depositories shall be fully protected in relying upon the written statement of Agent that any such Accounts hereafter arising, immediately, and in any event within ten days Account is at the time of such Grantor acquiring rights thereindemand assigned hereunder and that Agent is entitled to direct that payment shall be made therefrom. With respect Agent or Agent’s designee’s receipt for sums paid to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCCit pursuant to such demand shall be a full and complete release, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect discharge and acquittance to any such Accounts in existence on depository making such payment to the date hereof, extent of the amount so paid. Neither any such depository nor Agent or any Lender shall be liable for any loss of interest on or prior any penalty or charge assessed against funds in, payable on, or credited to the date hereof and (y) with respect to Accounts as a result of the proper exercise by Agent or any such Accounts hereafter arising, within 30 days depository of such Grantor acquiring any of their respective rights thereinor remedies hereunder.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its warrants to the Secured Party, with respect to the Grantors' Accounts, that, except as may be disclosed in the reports, including records the financial statements, filed by Interiors and its subsidiaries with the Securities and Exchange Commission from time to time pursuant to Interiors' obligations under the Securities Exchange Act of 1934, as amended (the "SEC Reports"): (i) each existing Account is, and each future Account will be, owned by such Grantor free and clear of all payments Liens other than Permitted Liens, (ii) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendering of services by such Grantor, in the ordinary course of the Grantors' business; (iii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Secured Party, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Secured Party in accordance with this Agreement; (iv) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except in the ordinary course of business or as reported to the Secured Party in accordance with this Agreement; (v) each copy of any invoice relating to an Account and delivered to the Secured Party by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (vi) all goods described in each invoice will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices described in each invoice will have been performed.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence Grantors' business or extend or modify any Account except in the ordinary course of business. If any Grantor becomes aware of any matter adversely affecting the collectibility of any Account or Accounts of any Account Debtor involving in the aggregate an Event of Default that is continuingamount greater than $100,000, each including information regarding the Account Debtors' creditworthiness, such Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of will promptly so advise the Secured Parties and that the Security Agent has a Security Interest thereinParty.
(c) The Security Agent No Grantor shall have accept any promissory note or other instrument in excess of $100,000 in aggregate amount or maturing more than 4 months after the right at issuance date thereof, except a check or other instrument for the immediate payment of money, with respect to any time following Account without the occurrence Secured Party's written consent, and each Grantor shall notify the Secured Party of any such promissory notes in excess of $100,000 delivered to such Grantor in respect of any Account; provided that if an Event of Default that is continuing to notifyexists, no Grantor shall accept any such note or require any Grantor to notify, any Account Debtor instrument (regardless of amount) without the consent of the Security Agent’s Security Interest in Secured Party. Any such note or instrument shall be considered as evidence of the Accounts Account and any Supporting Obligation not payment thereof and the Security Agent may: applicable Grantor will promptly deliver any such instrument in excess of $100,000 (Aand, if an Event of Default exists, all such notes and instruments) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security AgentSecured Party, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent or Secured Party in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect Secured Party. Regardless of the Accountsform of presentment, demand or notice of protest with respect thereto, each Grantor shall remain liable on any Supporting Obligation such note or Collateral Support shall be received in trust for instrument pledged by it to the benefit Secured Party, up to the amount of the Security Agent hereunder and shall be segregated from other funds of outstanding Obligations, until such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentinstrument is paid in full.
(d) With respect to Each Grantor shall notify the Secured Party promptly of all disputes and claims with any Accounts constituting Collateral Account Debtors in excess of $5,000,000 that is evidenced by100,000 in the aggregate for all of such Grantor's Account Debtors, and each Grantor agrees to settle, contest, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered adjust such dispute or claim at no expense to the Security Agent (Secured Party. No discount, credit or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect allowance shall be granted to any such Account Debtor without the Secured Party's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Grantors' business. The Secured Party may, at all times when an Event of Default exists, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Secured Party shall consider advisable and, in all cases, the Secured Party will credit the Obligations with only the amounts actually received by the Secured Party in payment of any Accounts in existence on the date hereofof any Grantor.
(e) If an Account Debtor returns any Inventory to any Grantor when no Event of Default exists, on or prior then such Grantor shall, to the date hereof extent consistent with past practice, promptly determine the reason for such return and (ii) with respect shall issue a credit memorandum to the Account Debtor in the appropriate amount. Each Grantor shall immediately report to the Secured Party any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral return involving an amount in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 100,000. Each such report shall indicate the reasons for the returns and the locations and condition of the UCC, each Grantor returned Inventory. All returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior be subject to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinSecured Party's Liens thereon.
Appears in 1 contract
Sources: Security Agreement (Interiors Inc)
Accounts. (a) Each Grantor hereby covenants On or prior to the Closing Date, the Servicer shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer and the Facility Agent), then the Servicer shall keep transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collections Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the end of the Revolving Period, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Agent (with a copy to the Facility Agent) along with an instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and maintain at its own cost a certification that the conditions to fund such draw are satisfied, and expense satisfactory the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset included in the Collateral and, as of the date of such receipt (and complete records after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of its Accountssuch shortfall, including records in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of all payments received such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and all credits granted on such Accounts, all merchandise returned and all other dealings therewith(b) the Unfunded Exposure Shortfall.
(b) Upon All amounts held in any Account shall, to the occurrence of an Event of Default that is continuingextent permitted by Applicable Law, each Grantor hereby covenants and agrees that, at be invested by the request of the Security Collateral Agent, it as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall ▇▇▇▇ conspicuouslyremain uninvested), in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact Permitted Investments that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: mature (i) with respect to any such Accounts in existence on the date hereofCollection Account, on or not later than one Business Day prior to the date hereof Distribution Date for the Collection Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such Accounts hereafter arisinginvestment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, immediatelyand, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent, the Borrower and/or the Servicer, as applicable, with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. The Collateral Agent or the Collateral Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Collateral Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any event within ten days of such Grantor acquiring Account, except to the extent explicitly set forth herein (including the withdrawal rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of for the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined Unfunded Exposure Account set forth in Section 9-105 8.1(a)). Subject to the other provisions hereof and Applicable Law, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
(d) The Equityholder may, from time to time in its sole discretion (x) with respect to any such Accounts in existence on deposit amounts into the date hereof, on Principal Collection Account or prior to the date hereof and Unfunded Exposure Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base and the Maximum Availability.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, including records that:
(i) each existing Account represents, and each future Account will represent, a BONA FIDE sale and delivery of all payments goods by such Grantor, in the ordinary course of such Grantor's business;
(ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Agent and the Lenders pursuant to this Agreement;
(iii) no payment will be received with respect to any Account, and all credits no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the ABL Agent;
(iv) each copy of an invoice delivered to the Agent by such Accounts, Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and
(v) all merchandise returned and all other dealings therewithgoods described in any invoice representing a sale of goods will have been shipped to the Account Debtor.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If any Grantor becomes aware of any matter adversely affecting the occurrence collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $5,000,000, each including information regarding the Account Debtor's creditworthiness, such Grantor hereby covenants and agrees that, at will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security If the Agent consents to the acceptance of any note or other instrument (except a check, letters of credit as customary to such Grantor's business practices or other instrument for the immediate payment of money) with respect to any Account, it shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor be considered as evidence of the Security Account and not payment thereof and, in respect of any instrument for an amount in excess of $5,000,000, such Grantor will, upon the request of the Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly , promptly deliver such instrument to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent or in blanka manner satisfactory in form and substance to the Agent. Regardless of the form of presentment, if requireddemand, in the Deposit Accountnotice of protest with respect thereto, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Grantor shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced bywith any Account Debtor, and agrees to settle, contest, or constitutesadjust such dispute or claim at no expense to the Agent or any Lender. Upon the occurrence of and during the continuance of an Event of Default, Chattel Paperno discount, each credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of such Grantor's business. Upon the request of the Agent, such Grantor shall cause send the Agent a copy of each originally executed copy thereof credit memorandum in excess of $5,000,000 as soon as issued. Upon the occurrence of and during the continuance of an Event of Default, the Agent may settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit such Grantor's Loan Account with the net amounts received by the Agent in payment of any Accounts.
(e) If an 8Account Debtor returns any Inventory to be delivered any Grantor when no Event of Default exists, then such Grantor shall, upon the request of the Agent, determine the reason for such return and issue a credit memorandum to the Security Agent (or its agent or designee) appropriately indorsed Account Debtor in the appropriate amount. Such Grantor shall deliver a monthly report to the Security Agent or indorsed setting forth all returns involving an amount in blankexcess of $5,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to any Grantor, upon the occurrence of and during the continuance of an Event of Default, such Grantor shall, upon the request of the Agent: (i) with respect to any such Accounts hold the returned Inventory in existence on trust for the date hereof, on or prior to the date hereof and Agent; (ii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iii) not issue any credits or allowances with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights thereinthereto without the Agent's prior written consent. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor All returned Inventory shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior be subject to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAgent's Liens thereon.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Levi Strauss & Co)
Accounts. No Borrower has made, nor will any Borrower make, any agreement with any Account Debtor for any extension of time for the payment of any Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by a Borrower and such other compromises or settlements in the ordinary course of its business consistent with historical practice and as previously disclosed to Lender in writing. With respect to the Accounts pledged as collateral pursuant to any Credit Document (a) Each Grantor hereby covenants the amounts shown on all invoices, statements and agrees that it shall keep reports which may be delivered to the Lender with respect thereto are actually and maintain at its own cost absolutely owing to a Borrower as indicated thereon and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
are not in any way contingent; (b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it no payments have been or shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any be made thereon except payments immediately delivered to the Security Agent Lender as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties required hereunder; and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall to each Corporate Credit Party’s knowledge all Account Debtors have the right at any time following the occurrence of an Event of Default that is continuing capacity to notify, or require any Grantor to notify, any Account Debtor contract. As of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts date of each Borrowing Base Certificate delivered to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notifyLender, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent listed thereon as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor an Eligible Account shall be forthwith (an Eligible Account and all Inventory listed thereon as Eligible Inventory shall be Eligible Inventory. Each Borrower shall notify Lender promptly and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy Days after obtaining knowledge thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect of any event or circumstance that to any such Accounts in existence on Borrower’s knowledge would cause Lender to consider any then existing Account or Inventory as no longer constituting an Eligible Account or Eligible Inventory, as the date hereof, on or prior to the date hereof and case may be; (ii) with respect of any material delay in any Borrower’s performance of any of its obligations to any such Accounts hereafter arisingAccount Debtor; (iii) of any assertion by an Account Debtor of any material claims, immediatelyoffsets or counterclaims; (iv) of any allowances, and in credits and/or monies granted by any event within ten days of such Grantor acquiring rights therein. With respect Borrower to any Accounts constituting Collateral in excess Account Debtor; (v) of $1,000,000 that constitutes “electronic chattel paper” under Article 9 all material adverse information relating to the financial condition of an Account Debtor; (vi) of any material return of goods; and (vii) of any loss, damage or destruction of any of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinCollateral.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory accurate and complete records of its Accounts, including records of all payments received and all credits granted collections thereon, and, if requested by Lender, shall submit to Lender, sales, collection and reconciliation reports in form, substance and on such Accounts, all merchandise returned and all other dealings therewitha periodic basis as is required of Borrowers pursuant to the Loan Agreement.
(b) Upon the occurrence If an Account of an Event of Default that Grantor includes a charge for any Taxes, Lender is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuouslyauthorized, in form and manner reasonably satisfactory its discretion, to pay the amount thereof to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent proper taxing authority for the benefit account of the Secured Parties Grantor and to charge Borrowers therefor; provided, however, that the Security Agent has a Security Interest thereinLender shall not be liable for any Taxes that may be due from Grantor or with respect to any Collateral.
(c) The Security Agent Whether or not a Default or Event of Default exists, Lender, at its sole cost and expense unless an Event of Default exists, shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereoftime, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentencename of Lender, any payments designee of Lender or Grantor, to verify the validity, amount or any other matter relating to any Accounts received of Grantor by such mail, telephone or otherwise. Grantor shall be forthwith (reasonably cooperate with Lender in an effort to facilitate and in promptly conclude any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentverification process.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause maintain Dominion Accounts pursuant to lockbox or other arrangements reasonably acceptable to Lender. Grantor shall obtain an agreement (in form and substance reasonably satisfactory to Lender and Grantor) from each originally executed copy thereof lockbox servicer and Dominion Account bank, establishing Lender’s control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to be delivered a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, Lender may require immediate transfer of all funds in such account to the Security Agent (a Dominion Account maintained with Bank of America. Lender assumes no responsibility to Grantor for any lockbox arrangement or its agent Dominion Account, including any claim of accord and satisfaction or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) release with respect to any such Payment Items accepted by any bank.
(e) Grantor shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts in existence on the date hereof, on or prior otherwise relating to the date hereof and Collateral are made directly to a Dominion Account (ii) or a lockbox relating to a Dominion Account). If Grantor receives cash or Payment Items with respect to any such Accounts hereafter arisingCollateral, immediately, it shall hold same in trust for Lender and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of promptly (not later than the UCC, each Grantor shall take all steps necessary to give next Business Day) deposit the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinsame into a Dominion Account.
Appears in 1 contract
Sources: General Security Agreement (Industrial Services of America Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on In the date hereofcase of USD Accounts, on or prior to the date hereof Effective Date, the Borrower shall establish each USD Account in the name of the Borrower, and each USD Account shall be established with the Securities Intermediary and (ii) with respect to any such in the case of Non-USD Accounts, including the Accounts hereafter arisingdenominated in NZD, immediatelyas soon as practicable following the Effective Date, the Borrower shall establish each Non-USD Account in the name of the Borrower, and each Non-USD Account shall be established with the Securities Intermediary. Funds held in the Collection Account shall be applied by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any event within ten days time a Responsible Officer of the Collateral Agent obtains actual knowledge that any Account denominated in Dollars ceases to be an Eligible Account (with notice to the Servicer, the Agent and each Lender Agent), then the Borrower shall cause the Servicer to transfer such Grantor acquiring rights thereinaccount to another institution such that such account shall meet the requirements of an Eligible Account. With respect to any Non-USD Accounts, the amounts therein shall be held in a non-interest bearing account established with the Securities Intermediary. Funds held in the Non-USD Accounts constituting by the Securities Intermediary need not be segregated from other funds except to the extent required by law. It is hereby understood and agreed that no Non-USD Account for any Eligible Currency other than Dollars shall be available for the receipt or payment of any amounts or other Collateral denominated in excess such applicable Eligible Currency until such time as the Securities Intermediary notifies the Borrower, the Servicer and the Agent that such Non-USD Account for such Eligible Currency is operational and available to receive or pay such amounts and other Collateral denominated in such Eligible Currency and the Securities Intermediary shall have no liability for any failure or delay in the receipt or payment of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined such amounts or other Collateral denominated in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or an Eligible Currency other than Dollars prior to the date hereof that the Securities Intermediary notifies the Borrower, the Servicer and (y) the Agent that such Non-USD Account with respect to such Eligible Currency is operational and available for deposits and payments. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn at the direction of the Borrower or at the direction of the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Principal Collections Account if, after giving effect to such Accounts hereafter arisingwithdrawal, within 30 days the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the Aggregate Unfunded Amount. Following the Facility Termination Date, the Borrower shall cause the Servicer to forward any draw request made by an Obligor under a Variable Funding Asset, along with wiring instructions for the applicable Obligor, to the Collateral Agent (with a copy to the Agent and each Lender Agent) along with a written instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the conditions to fund such draw are satisfied (which certification shall be deemed given upon delivery of any instruction order to withdraw such funds from the Unfunded Exposure Account), and the Collateral Agent shall fund such draw request in accordance with such instructions from the Servicer. On the last day of the Revolving Period, the Borrower shall fund amounts in each respective currency to the respective Unfunded Exposure Account in an aggregate amount equal to the Unfunded Exposure Amount. All funding requests associated with the Unfunded Exposure Amount shall be made from the Unfunded Exposure Account after the end of the Revolving Period. All uninvested amounts on deposit in the USD Unfunded Exposure Account shall be invested in Permitted Investments selected by the Servicer on each Distribution Date (or pursuant to standing instructions provided by the Servicer). Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset and, as of the date of such Grantor acquiring rights thereinreceipt (and after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount, the Borrower shall cause the Servicer to direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Equity Shortfall.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund)
Accounts. (a) ▇▇▇▇▇▇ agrees to deposit all revenues received by Lessee with respect to the Equipment into a demand deposit account (the “Control Account”) to be established by ▇▇▇▇▇▇. In addition, on the Lease Commencement Date, Lessee shall establish a separate interest bearing account (the “Minimum Monthly Reserve Account”). The Minimum Monthly Reserve Account and the Control Account are together referred to as the “Accounts”. Any and all interest accruing on invested amounts held in any of the Accounts shall be for the benefit of and shall be deemed the property of Lessee. Each Grantor hereby covenants of the Accounts may be at a financial institution that is an affiliate of Lessor. The cost of establishing and maintaining the Accounts shall be borne by ▇▇▇▇▇▇. Lessee shall instruct each counterparty to each Project Document to make all payments to which Lessee or any of ▇▇▇▇▇▇’s affiliates is entitled under each such Project Document to the Control Account and to provide evidence of such instruction to Lessor, and ▇▇▇▇▇▇ agrees to enforce its right, or to cause its affiliates to enforce their rights, to designate the Control Account as the place to which such payments should be made in the event that it for any reason any such counterparty fails to make payment to such account. Lessee shall, on the Lease Commencement Date, fund the Minimum Monthly Reserve Account with an amount equal to the “Minimum Monthly Reserve Fund” amount set forth in Exhibit A (the “Minimum Balance Requirement”), and Lessee shall keep thereafter maintain a minimum amount in the Minimum Monthly Reserve Account equal to the amount set forth in Exhibit A. Lessor shall have sole signatory authority over the Accounts. As collateral security for the prompt payment and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records performance of all payments received obligations under this Agreement, Lessee hereby grants to Lessor a first priority security interest in, lien upon and pledge of the Control Account and the Minimum Monthly Reserve Account. Lessee shall take all credits granted on such Accounts, all merchandise returned and all other dealings therewith.action as may be reasonably requested by Lessor to maintain Lessor’s first priority security interest in each such account. ________________________________________
(b) Upon If the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at amount in the request Minimum Monthly Reserve Account falls below eighty percent (80%) of the Security AgentMinimum Balance Requirement at any time, it Lessee shall ▇▇▇▇ conspicuously, promptly replenish the Minimum Monthly Reserve Account such that the Minimum Balance Requirement is met and in form and manner reasonably satisfactory addition shall provide to Lessor information regarding the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit cause of the Secured Parties shortfalls in the Control Account and/or Minimum Monthly Reserve Account, the steps being taken to remedy the situation giving rise to such shortfalls, and that the Security Agent has a Security Interest thereinsuch other information as Lessor shall reasonably request (which information shall not include technical proprietary information).
(c) The Security Agent shall have On the right at any time following the occurrence of an Event of Default date that is continuing ten (10) business days prior to notifyeach date on which a payment of Rent is due (each, or require any Grantor to notifya “Rent Payment Date”), any Account Debtor of Lessor shall determine the Security Agent’s Security Interest amounts on deposit in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Control Account, and until so turned overif there are insufficient funds to make the transfers contemplated in clauses first and second of Section 11(d) in full on the next occurring Rent Payment Date, all amounts Lessor shall withdraw from the Minimum Monthly Reserve Account an amount equal to such deficiency and Proceeds (including checks and other instruments) received by deposit such Grantor in respect of amount into the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentControl Account.
(d) With respect On each Rent Payment Date under this Lease, Lessor shall transfer funds from the Control Account in the following order of priority, in each case, to the extent funds are available in the Control Account: First, if any amount (other than Rent due and payable on such Rent Payment Date) is due and owing on such Rent Payment Date to Lessor hereunder (including, for the avoidance of doubt, any delinquent Rent due and owing at such time) or under any other Lease Document, Lessor shall transfer such amount to Lessor. Second, Lessor shall transfer the amount of all Rent due and owing on such Rent Payment Date to Lessor. Third, if the Minimum Balance Requirement is not met as of such Rent Payment Date, Lessor shall transfer to the Minimum Monthly Reserve Account the amount necessary to meet the Minimum Balance Requirement. Fourth, any obligation in the nature of operating expenses of the Project at the instruction of ▇▇▇▇▇▇ and as approved by Lessor. Fifth, provided that no Default has occurred and is continuing, Lessor shall transfer to Lessee any amounts remaining in the Control Account as instructed by ▇▇▇▇▇▇.
(e) [Intentionally omitted]
(f) At the end of the Lease Term, and after all amounts payable to Lessor under the Lease Documents have indefeasibly been paid in full, all amounts remaining in the Accounts constituting Collateral shall be paid to Lessee other than amounts necessary to repair any damage to the Equipment for which Lessee is liable hereunder or to the Site as a result of Lessee’s activity on the Site for which Lessor is liable, which amounts (or reasonably estimated amounts if the specific amounts are not then known to Lessor) may be retained by Lessor. In the event the estimated amount retained by Lessor is greater than the actual amount necessary for such repairs, Lessor shall so notify Lessee promptly following such determination and shall deliver to Lessee an amount equal ________________________________________ to such excess. Notwithstanding the foregoing, at the end of the Lease Term, Lessee shall have no obligation to repair or replace (or reimburse Lessor for any repair or replacement expenses related to) ordinary wear and tear, any module performing in excess line with the age and expected degradation curve of $5,000,000 that is evidenced bythe Equipment, or constitutesany part performing with the performance, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to reliability and safety in line with the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 age of the UCCEquipment and of a type, each Grantor shall grade, quality and condition comporting with Prudent Industry Practices.
(g) Lessor may cause a collateral agent to take any or all steps necessary actions Lessor is permitted to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to take under this Agreement or any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinother Lease Document.
Appears in 1 contract
Sources: Lease Agreement
Accounts. Each Grantor represents, warrants and covenants as follows:
(a) Each Such Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Collateral Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Grantor’s historical collection practices. The costs and expenses (including attorney’s fees) of collection, whether incurred by such Grantor or the Collateral Agent, shall be paid by such Grantor.
(b) Upon If payments with respect to any of such Grantor’s Accounts are received in a lockbox or similar account, such Grantor will (i) at all times cause such account to be a Controlled Deposit Account and (ii) cause the occurrence of relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). The Collateral Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Grantor; provided that, if an Event of Default that is shall have occurred and be continuing, each the Collateral Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Grantor authorizes the Collateral Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Collateral Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Collateral Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees that it shall keep warrants to the Administrative Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Grantor's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Administrative Agent, without any offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Administrative Agent and the Lenders pursuant to this Security Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Administrative Agent and the Lenders in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Administrative Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received Goods described in any invoice representing a sale of Goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithGrantor described in each invoice will have been performed.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Grantor's business or extend or modify any Account. If a Grantor becomes aware of any matter adversely affecting the occurrence collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each including information regarding the Account Debtor's creditworthiness, such Grantor hereby covenants will promptly so advise the Administrative Agent and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that exclude such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAccount from Eligible Accounts.
(c) The Security Agent No Grantor shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Administrative Agent’s Security Interest in 's written consent. If the Accounts and any Supporting Obligation and the Security Administrative Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Grantor will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAdministrative Agent, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Administrative Agent or in blanka manner satisfactory in form and substance to the Administrative Agent. Regardless of the form of presentment, if requireddemand, in the Deposit Accountnotice of protest with respect thereto, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Each Grantor shall cause each originally executed copy thereof to be delivered to notify the Security Administrative Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof promptly of all disputes and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral claims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the UCCAdministrative Agent or any Lender. No discount, each Grantor credit or allowance shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect be granted to any such Accounts Account Debtor without the Administrative Agent's prior written consent, except for discounts, credits and allowances made or given in existence on the date hereofordinary course of a Grantor's business when no Event of Default exists hereunder. Each Grantor shall send the Administrative Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinshall promptly report that credit on Borrowing Base Certificates submitted by it. The Administrative Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Administrative Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Administrative Agent will credit such Grantor's Loan Account with the net amounts received by the Administrative Agent in payment of any Accounts.
Appears in 1 contract
Accounts. Each Lien Grantor covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected in accordance with reasonable business practice from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with generally accepted commercial collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Administrative Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's collection practices as in effect from time to time. The reasonable out-of-pocket costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Administrative Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will, to the occurrence of extent required by Section 10 hereof, (i) cause such account to be a Controlled Deposit Account and (ii) cause the relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). The Administrative Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Lien Grantor, to the extent required by Section 10 hereof; provided that, if an Event of Default that is shall have occurred and be continuing, each the Administrative Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Administrative Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Administrative Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Administrative Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Administrative Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Guarantee and Security Agreement (Keystone Marketing Services Inc)
Accounts. (a) Each Grantor Option Care Person hereby represents and warrants to the Lender and covenants with the Lender that: (i) each existing Account represents, and agrees each future Account shall represent, a BONA FIDE sale or lease and delivery of goods by an Option Care Person, or rendition of services by an Option Care Person, in the ordinary course of business of an Option Care Person; (ii) each existing Account is, and each future Account shall be, at the time any such Account arose and at the time any such Account is billed, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Lender, without offset, deduction, defense, or counterclaim, other than discounts required by law or contract, and corrections of billing errors, in the ordinary course of business of an Option Care Person; (iii) no payment shall be received with respect to any Account, and no credit, discount, extension, or agreement therefor shall be granted on any Account, except as reported to the Lender in accordance with this Agreement; (iv) each copy of an invoice or claim form delivered to the Lender by an Option Care Person shall be a genuine copy of the original invoice or claim form sent to the Account Debtor named therein; (v) all goods described in any invoice or claim form representing a sale of goods shall have been delivered to the applicable patient and all services of any Option Care Person described in any invoice or claim form shall have been performed; (vi) each of the Accounts and the related contracts is in full force and effect and represents and constitutes a legal, valid and binding obligation of the related Account Debtor, enforceable against such Account Debtor in accordance with its terms; (vii) promptly following notice from an Account Debtor as to an earlier overpayment by such Account Debtor to any Option Care Person, such Option Care Person has made all payments to such Account Debtor which are necessary to prevent such Account Debtor from offsetting such overpayment against any amount which such Account Debtor owes on the Accounts (however, Lender acknowledges that it shall keep notwithstanding said payments, offsets may and maintain do nonetheless occur); (viii) no direction of any Option Care Person or any other Person is in effect directing Account Debtors (A) to remit payments in respect of the Accounts other than to a Lockbox or a Blocked Account or (B) to remit EOBs in respect of the Accounts to any Person or address other than to an Option Care Person at its own cost chief executive office; and expense satisfactory (ix) during the one year prior to the Closing Date, no Option Care Person has been subject to any Government Offset involving in excess of fifty thousand dollars ($50,000). As of the date of each Borrowing, each Option Care Person is unaware of any potential Government Offset involving in excess of fifty thousand dollars ($50,000) for any single Governmental Offset and complete records in excess of its Accountstwo hundred thousand dollars ($200,000) for all such Government Offsets that has not been disclosed by such Option Care Person to the Lender in writing prior to that date. All of the Medicaid and Medicare reports required to be filed by any Option Care Person for all reporting periods have been filed with the applicable Government Account Debtor, including records or HCFA designated agents or agents of such Government Account Debtor. At all payments received times on and after the thirtieth day following the Closing Date, each Option Care Person hereby represents and warrants to the Lender that Account Debtor Notices, signed by the Borrowers, have been delivered to all credits granted on such Accounts, all merchandise returned and all other dealings therewithof the Account Debtors of the type referred to in clause (p) of the definition of Eligible Account.
(b) Upon the occurrence of an Event of Default that is continuingNo Option Care Person shall re-date any invoice, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in claim form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts or sale or make sales on extended dating or extend or modify any Account (other than to correct billing errors in the ordinary course of business). The Lender acknowledges that if an Account Debtor which is the "primary" payor does not pay a claim in full or denies such claim, an Option Care Person may send a separate invoice to an Account Debtor which is a "secondary" payor. If any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit Option Care Person becomes aware of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default matter that is continuing reasonably likely to notify, or require any Grantor to notify, materially adversely affect any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct other than a Self-Pay Account Debtor), including information regarding the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to Debtor's creditworthiness, such Option Care Person shall promptly so advise the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentLender.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants of the Acquisition Statements (other than the Bec statements) and agrees that it shall keep to the best of the Borrower's knowledge, information and maintain belief after due and careful review and enquiry the Bec statements were prepared in accordance with UK gaap and give a true and fair view of the results of the operations of each Accounting Group as a whole to which the relevant Acquisition Statements relate and/or (as appropriate) each Accounting Company to which the relevant Acquisition Statements relate (as the case may be) for the period to which they relate and the state of the affairs of each Accounting Group as a whole to which the relevant Acquisition Statements relate and/or (as appropriate) each Accounting Company to which the relevant Acquisition Statements relate (as the case may be) at its own cost and expense satisfactory and complete records the end of its Accountssuch period and, including records in particular, disclose or reserve against all liabilities (actual or contingent) of all payments received each Accounting Group as a whole to which the relevant Acquisition Statements relate and/or (as appropriate) each Accounting Company to which the relevant Acquisitions Statements relate (as the case may be) and all credits granted on such Accounts, all merchandise returned and all other dealings therewithmaterial unrealized or anticipated losses from any commitment entered into by each Accounting Group as a whole to which the relevant Acquisition Statements relate and/or (as appropriate) each Accounting Company to which the relevant Acquisition Statements relate (as the case may be).
(b) Upon To the occurrence best of an Event of Default that is continuingthe Borrower's knowledge, information and belief after due and careful review and enquiry, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts Target Group Pro-forma Statements (other than any delivered to the Security Agent as provided hereinBec statements) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts were prepared in accordance with the preceding sentence, any payments provisions of Accounts received by UK gaap and give a true and fair view of the results of the operations of the relevant Target Group as a whole and/or (as appropriate) each member of the relevant Target Group for the period to which they relate and the state of the affairs of the relevant Target Group as a whole and/or (as appropriate) each member of the relevant Target Group at the end of such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if requiredperiod and, in the Deposit Accountparticular, and until so turned over, disclose or reserve against all amounts and Proceeds liabilities (including checks and other instrumentsactual or contingent) received by such Grantor in respect of the Accounts, relevant Target Group as a whole all material unrealised or anticipated losses from any Supporting Obligation or Collateral Support shall be received in trust for commitment entered into by the benefit relevant Target Group and/or (as appropriate) each member of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentrelevant Target Group.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Term Loan Facility (Aremissoft Corp)
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Administrative Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's customary collection practices. The costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Administrative Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will, at all times from a date not later than 30 days (or such longer period, not exceeding 75 days, as the occurrence of Administrative Agent may approve, such approval not to be unreasonably withheld) after the Initial Collateral Date, (i) cause such Account to be a Controlled Deposit Account and (ii) cause the relevant Depositary Bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). The Administrative Agent will instruct the relevant Depositary Bank to transfer funds credited to any such Account, as promptly as practicable after receipt thereof, to a concentration account which is a Controlled Deposit Account designated by such Lien Grantor; provided that, if an Event of Default that is shall have occurred and be continuing, each the Administrative Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Administrative Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Administrative Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Administrative Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Administrative Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Security Agreement (Williams Communications Group Inc)
Accounts. (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory On or prior to the Security Agent30th date after the Availability Date, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered i) the Company shall deliver to the Security Administrative Agent Schedule 5.14 (as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties schedule is amended, amended and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notifyrestated, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance supplemented with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Administrative Agent.
) listing all Deposit Accounts, Securities Accounts and Commodity Accounts (dincluding Excluded DDA) With respect to maintained by or for the benefit of the Company or any Accounts constituting Collateral in excess of $5,000,000 that is evidenced bySubsidiary and (ii) the Company shall have, or constitutes, Chattel Paper, and shall have caused each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereofSubsidiary to, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arisingdate, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) caused each such Deposit Account, Securities Account and Commodity Account (other than Excluded DDA) to be maintained with respect to any such Accounts in existence on the date hereof, on Administrative Agent or prior a Lender or another financial institution reasonably acceptable to the date hereof Administrative Agent and (y) with respect caused any and all amounts held in an account (other than Excluded DDA) that is not listed on such Schedule 5.14 to any have been transferred from such account to a Deposit Account, Securities Account or Commodity Account, as applicable, listed on such Schedule.
(b) From and after the 30th date following the Availability Date, the Company shall, and shall cause each Subsidiary to: (i) deposit or cause to be deposited directly, all Cash Receipts into one or more Deposit Accounts hereafter arisinglisted on Schedule 5.14 (and from and after the Collateral Trigger Event Date, within 30 days in which the Administrative Agent has been granted a first-priority Lien subject to a Control Agreement), (ii) deposit or credit or cause to be deposited or credited directly, all securities and financial assets held or owned by (whether directly or indirectly), credited to the account of, or otherwise reflected as an asset on the balance sheet of, the Company and its Subsidiaries (including, without limitation, all marketable securities, treasury bonds and bills, certificates of such Grantor acquiring rights thereindeposit, investments in money market funds and commercial paper) into one or more Securities Accounts listed on Schedule 5.14 (and from and after the Collateral Trigger Event Date, in which the Administrative Agent has been granted a first-priority Lien subject to a Control Agreement) and (iii) cause all commodity contracts held or owned by (whether directly or indirectly), credited to the account of, or otherwise reflected as an asset on the balance sheet of, the Company and its Subsidiaries, to be carried or held in one or more Commodity Accounts listed on Schedule 5.14 (and from and after the Collateral Trigger Event Date, in which the Administrative Agent has been granted a first-priority Lien subject to a Control Agreement).
Appears in 1 contract
Accounts. As of the date of each Borrowing Base Certificate delivered to Lender, each Account listed thereon as an Eligible Account shall be an Eligible Account. Borrower has not made, and will not make, any agreement with any Account Debtor for any extension of time for the payment of any Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with historical practice and as previously disclosed to Lender in writing. Disclosure Schedule (3.18) sets forth each Contract of the Borrower with any Account Debtor that gives such Account Debtor the right (under such Contract, under common law or otherwise) to offset any Accounts for Borrower’s failure to perform under such Contract and Borrower has obtained an offset waiver for each such contract in form and substance satisfactory to Lender. With respect to the Accounts pledged as collateral pursuant to any Loan Document (a) Each Grantor hereby covenants the amounts shown on all invoices, statements and agrees reports that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to may be delivered to the Security Agent Lender with respect thereto are actually and absolutely owing to Borrower as indicated thereon and are not in any way contingent; (b) no payments have been or its agent or designee) appropriately indorsed shall be made thereon except payments immediately delivered to the Security Agent applicable accounts described in paragraph 1 to Schedule D or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof Lender as required hereunder; and (iic) with respect to any such Accounts hereafter arising, immediately, and in Borrower’s knowledge all Account Debtors have the capacity to contract. Borrower shall notify Lender promptly of any event within ten days of such Grantor acquiring rights therein. With respect or circumstance that to Borrower’s knowledge would cause Lender to consider any Accounts then existing Account as no longer constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinan Eligible Account.
Appears in 1 contract
Sources: Loan and Security Agreement (Charys Holding Co Inc)
Accounts. (ai) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all payments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Upon At any time after the occurrence and during the continuance of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory after giving reasonable notice to the Security AgentBorrower and any other relevant Grantor, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Administrative Agent shall have the right, but not the obligation, to make test verifications of the Accounts that are included in Article 9 Collateral (the “Subject Accounts”) in any manner and through any medium that the Administrative Agent reasonably considers advisable, and each Grantor shall furnish all such assistance and information as such Agent may require in connection with such test verifications. The Administrative Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.
(ii) The Administrative Agent hereby authorizes each Grantor to collect such Grantor’s Subject Accounts and the Administrative Agent may curtail or terminate said authority at any time following after the occurrence and during the continuance of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have doneDefault. If required in writing by the Security Administrative Agent notifies a Grantor that it has elected to collect at any time after the Accounts in accordance with occurrence and during the preceding sentencecontinuance of an Event of Default, any payments of Accounts received Subject Accounts, when collected by such Grantor any Grantor, (x) shall be forthwith (and and, in any event event, within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Administrative Agent or in blank, if required, in a Deposit Account maintained under the Deposit Accountsole dominion and control of and on terms and conditions reasonably satisfactory to the Administrative Agent, subject to withdrawal by the Administrative Agent for the account of the Secured Parties, and (y) until so turned over, all amounts and Proceeds (including checks and other instruments) received shall be held by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit Administrative Agent, on behalf of the Security Agent hereunder and shall be Secured Parties, segregated from other funds of such Grantor Grantor. Each such deposit of Proceeds of Subject Accounts shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.
(iii) At the Administrative Agent’s written request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall not adjustdeliver to the Administrative Agent all original and other documents evidencing, settle or compromise and relating to, the amount or agreements and transactions which gave rise to the Subject Accounts, including all original orders, invoices and shipping receipts.
(iv) Upon the occurrence and during the continuance of an Event of Default, a Grantor shall not, without the prior written consent of the Administrative Agent, grant any extension of the time of payment of any of the Subject Accounts, compromise, compound or release settle the same for less than the full amount thereof, release, wholly or partly partly, any Account Debtor or obligor Person liable for the payment thereof, or allow any credit or discount whatsoever thereon without if the prior Administrative Agent shall have instructed the Grantors in writing not to grant or make any such extension, credit, discount, compromise or settlement under any circumstances during the continuance of such Event of Default.
(v) The Administrative Agent in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default, after giving reasonable written consent notice to the relevant Grantor of its intent to do so, communicate with obligors under the Subject Accounts to verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any Accounts. The Administrative Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.
(vi) Upon the written request of the Security Administrative Agent at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Subject Accounts that the Subject Accounts have been assigned to the Administrative Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Administrative Agent.
(dvii) With respect Anything herein to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paperthe contrary notwithstanding, each Grantor shall cause remain liable under each originally executed copy thereof of the Subject Accounts to observe and perform all the conditions and obligations to be delivered observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Administrative Agent nor any Secured Party shall have any obligation or liability under any Subject Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by the Administrative Agent or any Secured Party of any payment relating thereto, nor shall the Administrative Agent or any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Subject Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the Security Agent (nature or its agent the sufficiency of any payment received by it or designee) appropriately indorsed as to the Security Agent sufficiency of any performance by any party thereunder, to present or indorsed in blank: (i) with respect file any claim, to take any such Accounts in existence on action to enforce any performance or to collect the date hereof, on payment of any amounts which may have been assigned to it or prior to the date hereof and (ii) with respect to which it may be entitled at any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on time or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereintimes.
Appears in 1 contract
Accounts. On or before the Effective Date, the Borrower Group Companies shall take such action as shall be necessary to establish with the Security Trustee the following corporate trust Accounts: (ai) Each Grantor hereby covenants a collections account (the "Collections Account"); (ii) a LTV securities account (the "LTV Securities Account"), (iii) a funding account (the "Funding Account"), (iv) to the extent required under Leases to which any Borrower Group Company is a party, one or more lessee funded accounts (each, a "Lessee Funded Account"); (v) a maintenance reserve account (the "Maintenance Reserve Account"); (vi) a security reserve account (the "Security Reserve Account"); and agrees that it (vii) an aircraft expenses account (the "Aircraft Expenses Account") or such other accounts as are required by law. In addition, on or before the initial Release Date, each relevant Borrower Group Company shall keep and maintain at its own cost and expense satisfactory and complete records take any action necessary to enable the Security Trustee to obtain "control" (within the meaning of its the applicable Uniform Commercial Code) with respect to the Accounts, including records of provided that each Borrower Group Company shall have the right to direct the Security Trustee to withdraw amounts from the Accounts as provided in this Section 6.01. To the extent required under any Eligible Lease, the relevant Borrower Group Company may establish one or more local rental receipts accounts, subject to compliance with clause (c) below (each a "Borrower Rental Account"). Each relevant Borrower Group Company shall take all payments received and actions necessary or reasonably requested by the Security Trustee (upon the written instruction from the Administrative Agent) to enable the Security Trustee at all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
times to maintain "control" (b) Upon within the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request meaning of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to applicable Uniform Commercial Code) of the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts. Each of the foregoing Accounts (other than any delivered to the Security Agent as provided hereinBorrower Rental Accounts) with an appropriate reference to shall be a segregated non-interest bearing trust account established in the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor name of the Security Agent’s Security Interest in Trustee. WFB will maintain each of the foregoing Accounts and any Supporting Obligation and (other than the Security Agent may: (ABorrower Rental Accounts) direct under the Account Debtors under any Accounts to make payment jurisdiction of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require State of New York as a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent "securities account" as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that term is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 98-105 501(a) of the New York UCC and will, for purposes of the New York UCC, maintain the "security intermediary's jurisdiction" as such term is defined in Section 8-110(e) over such Accounts (x) with respect to any such Accounts in existence on of the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinNew York UCC.
Appears in 1 contract
Sources: Security Agreement (Fly Leasing LTD)
Accounts. (a) Each Grantor Borrower hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to such Borrower's Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a BONA FIDE sale or lease and delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and disclosed to the Agent and the Lenders to the extent required pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except in the ordinary course of the Borrowers' business when no Event of Default exists hereunder and, to the extent required hereunder, as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on services of such Accounts, all merchandise returned and all other dealings therewithBorrower described in each invoice will have been performed.
(b) Upon No Borrower shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account, except in the occurrence ordinary course of an the Borrowers' business when no Event of Default that is continuingexists hereunder. If a Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an amount greater than $250,000, each Grantor hereby covenants and agrees thatincluding information regarding the Account Debtor's creditworthiness, at such Borrower will promptly so advise the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent No Borrower shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in 's written consent. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the applicable Account and to adjust, settle or compromise not payment thereof and the amount or payment thereof, in the same manner and applicable Borrower will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received endorsed by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor Borrower to the Security Agent or in blank, if required, a manner satisfactory in form and substance to the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect Without limiting the obligation of the Borrowers to any disclose ineligible Accounts constituting Collateral on the Borrowing Base Certificates delivered pursuant to Section 6.6, each Borrower shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by250,000 with any Account Debtor, and agrees to settle, contest, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered adjust such dispute or claim at no expense to the Security Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Borrowers' business when no Event of Default exists hereunder. The applicable Borrower shall send the Agent a copy of each credit memorandum in excess of $250,000 as soon as issued. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(or its agent or designeee) appropriately indorsed If an Account Debtor returns any Inventory to a Borrower when no Event of Default exists, then such Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Security Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Agent or indorsed any return involving an amount in blankexcess of $250,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to the Borrowers when an Event of Default exists, the Borrowers, upon the request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.returned Inventory
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants On or prior to the Effective Date, the Borrower shall establish each Account in the name of the Borrower and agrees each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary. Funds held in the Collection Account shall be applied by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that it any Account ceases to be an Eligible Account (with notice to the Servicer, the Agent and each Lender Agent), then the Borrower shall keep cause the Servicer to transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn at the written direction of the Borrower or at the written direction of the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset, or (ii) to make a deposit into the Collection Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than (A) during the Revolving Period, the Aggregate Exposure Equity Amount and maintain at its own cost (B) after the Revolving Period, the Aggregate Exposure Amount. Following the Revolving Period, the Borrower shall cause the Servicer to forward such draw request made by an Obligor, along with wiring instructions for the applicable Obligor, to the Document Custodian, the Collateral Administrator and expense satisfactory the Collateral Agent (with a copy to the Agent and complete records each Lender Agent) along with a written instruction to the Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the conditions to fund such draw are satisfied, and the Collateral Agent shall fund such draw request in accordance with such written instructions from the Servicer. Following the end of its Accountsthe Revolving Period, including records if the Borrower shall receive any Principal Collections from an Obligor with respect to a Variable Funding Asset and, as of all payments received the date of such receipt (and all credits granted after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Exposure Amount (the amount of such Accountsshortfall, all merchandise returned in each case, the “Unfunded Exposure Shortfall”), the Borrower shall cause the Servicer to direct in writing the Collateral Agent to and all other dealings therewiththe Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Shortfall (such amount to be determined by the Servicer).
(b) Upon All amounts held in any Account shall, to the occurrence extent permitted by Applicable Laws, be invested by the Collateral Agent, as directed by the Servicer in writing, in Permitted Investments that mature with respect to the Collection Account, not later than one Business Day prior to the Distribution Date for the Accrual Period to which such amounts relate. If the Servicer fails to provide such direction, such amounts shall be invested in the Blackrock Liquidity T-Fund 60 (TSTXX) (the “Standby Investment”). Any such written direction shall certify that any such investment is authorized by this Section 8.1. The Borrower, the Servicer on behalf of the Borrower and the Agent each agrees that it shall not give any instruction to invest such funds other than in accordance with, or subject to an Event exemption from, the EU Retention Requirements. Investments in Permitted Investments shall be made in the name of Default the Collateral Agent, and, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give such direction, the Agent. The Collateral Agent shall, upon written request, provide the Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent or the Document Custodian be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Agent, as applicable, to timely provide investment instruction to the Document Custodian. The Collateral Agent or the Document Custodian and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s or the Document Custodian’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory reimbursable or payable pursuant to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinthis Agreement.
(c) The Security Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in the Collection Account, except to the extent explicitly set forth in Section 8.1(a), Section 8.1(b), Section 8.2, Section 8.3(b) or Section 10.16. Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the right at meaning of the UCC) over each Account and each such investment and the income thereon, and any time following certificate or other instrument evidencing any such investment, if any, shall be delivered to the occurrence Collateral Agent or its agent, together with each document of an Event of Default transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that is continuing to notifycomplies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or require any Grantor to notifyearnings on, any Account Debtor investments of the Security Agent’s Security Interest funds in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due shall be deposited or to become due to any Grantor thereunder directly transferred to the Security AgentCollection Account and distributed pursuant to Section 8.3(a). For all U.S. federal income Tax reporting purposes, all income earned on the funds invested and allocable to the Accounts is legally owned by the Borrower (Band beneficially owned by the Borrower). The Borrower is required to provide to U.S. Bank National Association in its capacity as Securities Intermediary (i) notifyan applicable IRS Form W-9 no later than the Effective Date and (ii) any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by Applicable Law or reasonably requested by the Securities Intermediary as may be necessary (a) to reduce or eliminate the imposition of U.S. withholding Taxes and (b) to permit the Securities Intermediary to fulfill its Tax reporting obligations under Applicable Law with respect to the Accounts or any amounts paid to the Borrower. The Borrower is further required to report to the Securities Intermediary any change in the legal or beneficial ownership of the income allocable to the Accounts. Neither U.S. Bank National Association nor any of its Affiliates, in their individual capacity and in its capacity as Securities Intermediary, shall have any liability to the Borrower or any other person in connection with any Tax withholding amounts paid, or require retained for payment, to a Grantor governmental authority from the Accounts arising from the Borrower’s failure to notifytimely provide an accurate, each person maintaining a lockbox correct and complete applicable IRS Form W-9 or similar arrangement such other documentation contemplated under this Section 8.1(c). For the avoidance of doubt, no funds shall be invested with respect to which Account Debtors under any such Accounts have been directed absent the Securities Intermediary having first received (x) instructions with respect to make payment to remit all amounts representing collections on checks the investment of such funds and (y) the forms and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received documentation required by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentthis Section 8.1(c).
(d) With respect The Equityholder may, from time to any Accounts constituting Collateral time in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts sole discretion (x) with respect to any such Accounts in existence on the date hereof, on or prior transfer to the date hereof and Collateral Agent for deposit amounts into the Principal Collection Account and/or (y) with respect transfer Eligible Collateral Obligations as equity contributions to any the Borrower for deposit in the Custodial Account. All such Accounts hereafter arisingamounts will be included in each applicable compliance calculation under this Agreement, within 30 days including, without limitation, calculation of such Grantor acquiring rights thereinthe Borrowing Base and the Collateral Quality Tests.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund)
Accounts. (a) Each Such Grantor hereby covenants and agrees shall not, other than in the ordinary course of business consistent with its past practice, (i) grant any extension of the time of payment of any Account, (ii) compromise or settle any Account for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Account, other than such release in connection with a sale of such Accounts pursuant to a sale of a National Representative Contract permitted under the Credit Agreement, provided that it shall keep and maintain such Grantor receives in cash the then outstanding amount of such Accounts at its own cost and expense satisfactory and complete records the time of its Accountssuch sale, including records of all payments received and all credits granted (iv) allow any credit or discount on such Accountsany Account or (v) amend, all merchandise returned and all other dealings therewithsupplement or modify any Account in any manner that could adversely affect the value thereof.
(b) Upon the occurrence of an Event of Default that is continuing, each Grantor hereby covenants and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Collateral Agent shall have the right at to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and such Grantor shall furnish all such assistance and information as the Collateral Agent may reasonably require in connection therewith, provided that so long as no Event of Default has occurred and is continuing, the Collateral Agent shall not make (i) more than 3 such test verifications during any Fiscal Year and (ii) such test verifications during a period commencing on January 1st and ending on March 15th of each year. At any time following after the occurrence and during the continuance of an Event of Default Default, upon the Collateral Agent's request, such Grantor shall cause independent public accountants or others satisfactory to the Collateral Agent to furnish to the Collateral Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Accounts. Any expenses incurred by the Collateral Agent in connection with its exercise of rights pursuant to this Section 4.4 shall be equally shared by the Grantors, on the one hand and the Collateral Agent on the other hand; provided, however, that is continuing the Grantors shall in no event be required to notify, or require any Grantor to notify, any Account Debtor pay more than $10,000 of such expenses of the Security Agent’s Security Interest Collateral Agent in any Fiscal Year. Notwithstanding the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the immediately preceding sentence, any payments following the occurrence and during the continuance of Accounts received an Event of Default, all expenses incurred by such Grantor the Collateral Agent in connection with its exercise of rights pursuant to this Section 4.4 shall be forthwith (and in any event within two Business Days) deposited borne by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security AgentGrantors.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Sources: Security Agreement (Interep National Radio Sales Inc)
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's historical collection practices. The costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will (i) at all times cause such account to be a Controlled Deposit Account and (ii) use commercially reasonable efforts to cause the occurrence of relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its customary operating charges and any uncollected funds previously credited thereto). The Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a Controlled Deposit Account designated by such Lien Grantor; provided that, if an Event of Default that is shall have occurred and be continuing, each the Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a) Each Grantor hereby covenants represents and agrees warrants to the Agent and the Lenders, with respect to such Grantor's Accounts that it shall keep and maintain at its own cost and expense satisfactory and complete records are to be included in the determination of its Eligible Accounts, including records that: (i) each such existing Account other than Credit Card Accounts represents, and each such future Account other than Credit Card Accounts will represent, a bona fide sale or lease and delivery of goods by such Grantor, or rendition of services by such Grantor, in the ordinary course of such Grantor's business; (ii) each such existing Account is, and each such future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any material offset, deduction, defense, or counterclaim except those known to such Grantor and disclosed to the Agent and the Lenders pursuant to this Security Agreement; (iii) no payment will be received with respect to any such Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except in the ordinary course of business or as otherwise reported to the Agent and the Lenders in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Agent by such Grantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted services of such Grantor described in each invoice will have been performed and (vi) to the extent any such Account is a Credit Card Account (1) such Account arises from the sale, lease or rental of goods or rendition of services, is owned by such Grantor and represents a complete bona fide transaction which requires no further act on the part of such AccountsGrantor to make such Account payable by the Account Debtor; (2) such Account and the underlying contract related thereto does not contravene in any material respect any laws, all merchandise returned rules or regulations applicable thereto including, without limitation, rules and all regulations relating to truth-in-lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy and no party to the underlying contract related thereto is in violation of any such laws, rules or regulations in any material respect; (3) the goods, the sale of which gave rise to the Account, were not at the time of the sale subject to any Lien other dealings therewiththan Liens permitted under Section 7.10(b) of the Credit Agreement; and (4) no Grantor is in material breach of any express or implied material representations or warranty with respect to the goods, the sale of which gave rise to such Account nor in material breach of any material representation or warranty, covenant or other agreement contained in the Loan Documents with respect to such Account.
(b) Upon No Grantor shall re-date any invoice or sale or make sales on extended dating or extend or modify any Account beyond that customary in such Grantor's business. If any Grantor becomes aware of any matter adversely affecting the occurrence collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $500,000, each including information regarding the Account Debtor's creditworthiness, such Grantor hereby covenants will promptly so advise the Agent and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that exclude such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAccount from Eligible Accounts.
(c) The Security Agent No Grantor shall have accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence immediate payment of an Event of Default that is continuing money) with respect to notify, or require any Grantor to notify, any Account Debtor of without the Security Agent’s Security Interest in 's written consent. If the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly consents to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection acceptance of any such Accounts instrument, it shall be considered as evidence of the Account and to adjust, settle or compromise the amount or not payment thereof, in the same manner thereof and such Grantor will promptly deliver such instrument to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentenceAgent, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed endorsed by such Grantor to the Security Agent or in blanka manner satisfactory in form and substance to the Agent. Regardless of the form of presentment, if requireddemand, in the Deposit Accountnotice of protest with respect thereto, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor shall remain liable thereon until such instrument is paid in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentfull.
(d) With respect to any Accounts constituting Collateral Each Grantor shall notify the Agent promptly of all disputes and claims in excess of $5,000,000 that is evidenced by500,000 with any Account Debtor, and agrees to settle, contest, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered adjust such dispute or claim at no expense to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect any Lender. No discount, credit or allowance shall be granted to any such Accounts Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days ordinary course of such Grantor acquiring rights thereinGrantor's business when no Event of Default exists hereunder. With respect to The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Required Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Borrower's Loan Account with the net amounts received by the Agent in payment of any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinAccounts.
Appears in 1 contract
Sources: Pledge and Security Agreement (Taylor Ann Stores Corp)
Accounts. (a) Each Grantor hereby covenants The Borrower shall within 30 days following the date hereof establish with DBTCA, as securities intermediary, two accounts for purposes of this Deed, each in the name of the Borrower for the benefit of the Collateral Agent, one such account (including any subaccounts therein) being the “Collateral Account” and the other such account (including any subaccounts therein) being the “Pledged Reserves Account”. Subject to the provisions of this Deed, each Account shall be under the sole control of the Collateral Agent. DBTCA, as securities intermediary, shall comply with the instructions of the Collateral Agent with respect to each Account and shall comply with any entitlement order received from the Collateral Agent, without further consent of the Borrower or any other person, with respect to all securities, financial assets or other investment property credited to each Account, and DBTCA, as securities intermediary, will not comply with entitlement orders or instructions concerning either Account or securities, financial assets or other investment property credited thereto originated by the Borrower. Prior to the termination of this Deed and subject to the following provisions of this Section 8, amounts in the Accounts shall be applied only to pay and discharge Secured Obligations. At the request of the Collateral Agent, the Borrower agrees that it shall keep promptly to cause each or both Accounts to be opened with and maintain at its own cost maintained by another bank or banks (the “Depositary”) acceptable to the Collateral Agent and expense the Borrower under an account agreement in form and substance satisfactory to the Collateral Agent and complete records of its Accounts, including records of all payments received the Borrower and subject to an agreement providing the Collateral Agent with control over each applicable Account and all credits granted on Collateral credited from time to time thereto, in form and substance similar hereto. Each Account shall at all times be maintained within the United States. The Borrower and DBTCA, as securities intermediary, agree that each Account constitutes a “securities account” for purposes of Articles 8 and 9 of the Uniform Commercial Code and that, so long as an Account is maintained with DBTCA, as securities intermediary, (i) DBTCA, as securities intermediary, will treat all of the Collateral credited from time to time to such AccountsAccount as financial assets within the meaning of Article 8 of the Uniform Commercial Code to the fullest extent it may do so under the Uniform Commercial Code, and (ii) DBTCA, as securities intermediary, shall act as a securities intermediary with respect to such Account. For purposes of Articles 8 and 9 of the Uniform Commercial Code, all merchandise returned matters relating to the Collateral and all other dealings therewitheach Account shall be governed by the laws of the State of New York.
(b) Upon All cash, documents, instruments, securities general intangibles, financial assets and other investment property and Collateral from time to time on deposit in or credited to each Account, and all rights pertaining to investments of funds in each Account, shall immediately and without any need for any further action on the part of the Borrower or the Collateral Agent become subject to the security interest, lien and assignment set forth in this Deed. Any earnings on investments of funds in either Account shall be deposited into or retained in the Collateral Account, as the case may be.
(c) Without limitation of any other rights which the Collateral Agent may have in and to any funds in either Account, including interest accrued and accredited thereto, if the Loss Threshold Incurrence Date has occurred, (i) the Collateral Agent shall have the exclusive right to deliver instructions and entitlement orders to the issuer of or any securities intermediary for any securities, financial assets or other investment property in each Account without further consent from the Borrower, (ii) the proceeds of any investments in each Account which mature or which shall from time to time be sold may be reinvested in Qualified Investments for the account of such Account, (iii) any net income or gain on the investment of funds from time to time held in an Account shall be credited to such Account, and any net loss on any such investment shall be charged against such Account and (iv) the Collateral Agent shall be authorized to invest and reinvest the funds from time to time deposited in either Account in Qualified Investments in the sole discretion of the Collateral Agent. The Collateral Agent shall not be a trustee for the Borrower, nor shall have any obligations or responsibilities, or shall be liable for anything done or not done, in connection with this Deed or any funds in the Collateral Account, except as expressly provided herein and except that the Collateral Agent shall have the obligations of a secured party under the Uniform Commercial Code in effect from time to time in the State of New York. In no event, however, shall the Collateral Agent have any obligations or responsibilities or be liable in any way for any investment decision made pursuant to this Section or for any decrease in the value of any funds pledged or invested pursuant to this Deed. At any time after an Event of Default has occurred and is continuing, the Collateral Agent may sell any documents, instruments and securities held in the Collateral Account and deliver instructions and entitlement orders with respect thereto and may immediately apply the proceeds thereof and any other cash held in the Collateral Account against and on account of the Secured Obligations in the manner provided in Section 7.
(d) In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, at any time after an Event of Default has occurred and is continuing, the Collateral Agent is hereby authorized at any time and from time to time, without notice to the Borrower or to any other person or entity, any such notice being hereby expressly waived by the Borrower, to appropriate and apply all moneys in each Account against and on account of the Secured Obligations in the manner provided in Section 7, irrespective of whether or not the Collateral Agent shall have made any demand hereunder. The Collateral Agent is hereby authorized to debit each Account and to withdraw funds therefrom to pay interest and principal when due under the Credit Agreement and the Notes without further instruction from the Borrower.
(e) From and after the occurrence of an Event of Default that is continuingDefault, the Collateral Agent shall transfer or direct the transfer of available funds from each Grantor hereby covenants and agrees that, at Account to the request Administrative Agent on each date any principal amount of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory Loans or interest thereon are required to be paid pursuant to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered Credit Agreement in an amount equal to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit lesser of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any the available credit balance of such Accounts in existence Account on the such date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days the aggregate amount of such Grantor acquiring rights therein. With respect principal and/or interest required to any Accounts constituting Collateral be paid on such date in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 payment for the account of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days Borrower of such Grantor acquiring rights thereinprincipal and interest.
Appears in 1 contract
Accounts. (ai) Each Grantor hereby covenants Credit Party shall, and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records cause each of its AccountsSubsidiaries to, including records of all payments received notify Agent promptly (and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
in any event within five (b5) Upon Business Days following the occurrence of any of the following) of: (i) any material delay in Borrower’s performance of any of its material obligations to any Account Debtor or the assertion of any material claims, offsets, defenses or counterclaims by any account debtor, or any material disputes with account debtors, or any settlement, adjustment or compromise thereof, (ii) all material adverse information known to Borrower relating to the financial condition of any account debtor and (iii) any event or circumstance which, to the best of Borrower’s knowledge, would cause Agent to consider any then existing Accounts as no longer constituting Eligible Receivables or Eligible Unbilled Receivables. No credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any Account Debtor without Agent’s consent, except in the Ordinary Course of Business in accordance with past practices and policies and except as set forth in the Borrowing Certificate delivered to Agent. So long as no Event of Default exists or has occurred and is continuing, Borrower shall settle, adjust or compromise any claim, offset, counterclaim or dispute with any Account Debtor. At any time that an Event of Default that has occurred and is continuing, each Grantor hereby covenants and agrees thatAgent shall, at its option, have the request exclusive right to settle, adjust or compromise any claim, offset, counterclaim or dispute with Account Debtors or grant any credits, discounts or allowances. If requested by Agent at any time that an Event of Default exists or has occurred and is continuing, Borrower shall execute and deliver to Agent, formal written assignments of all of their respective Accounts as Agent may request, including all Accounts created since the date of the Security Agentlast assignment, it together with copies of claims, invoices and/or other information related thereto.
(ii) With respect to each Account: (i) the amounts shown on any invoice or Borrowing Certificate delivered to Agent shall ▇▇▇▇ conspicuouslybe true and complete, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any ii) no payments shall be made thereon except payments immediately delivered to the Security Agent as provided herein) with an appropriate reference Blocked Account pursuant to the fact terms of this Agreement, (iii) no credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any account debtor except as reported to Agent in accordance with this Agreement and except for credits, discounts, allowances or extensions made or given in the ordinary course of Borrower’s business in accordance with practices and policies previously disclosed to Agent, (iv) there shall be no setoffs, deductions, contras, defenses, counterclaims or disputes existing or asserted with respect thereto except as reported to Agent in accordance with the terms of this Agreement and except with respect to setoffs against customer deposits maintained in the Ordinary Course of Business (it being agreed that Agent may establish reserves against the Availability for customer deposits), (v) none of the transactions giving rise thereto will violate any applicable foreign, Federal, State or local laws or regulations, all documentation relating thereto will be legally sufficient under such Accounts have been collaterally assigned laws and regulations and all such documentation will be legally enforceable in accordance with its terms.
(iii) Borrower (i) shall provide prompt written notice to its banks to transfer all items, collections and remittances to the Security Concentration Account, (ii) shall provide prompt written notice to each Account Debtor directing each Account Debtor to make payments to the appropriate Blocked Account, in each case not later than (A) ten (10) calendar days after the Closing Date, or (B) ten (10) calendar days after the Person becomes an Account Debtor, and hereby authorize Agent and/or Lenders, upon any failure to send such directions within the applicable time period, to send any and all similar directions or notice to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Agent in its Permitted Discretion to secure Agent, for the benefit of the Secured Parties Lender Parties, and that effectuate the Security Agent has a Security Interest therein.
(c) The Security intentions of the Loan Documents. Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notifyor times, or require any Grantor to notify, any Account Debtor of the Security in Agent’s Security Interest name or in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment name of all amounts due or to become due to any Grantor thereunder directly to the Security a nominee of Agent, (B) notifyto verify the validity, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect matter relating to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byor other Collateral, by mail, telephone, facsimile transmission or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinotherwise.
Appears in 1 contract
Sources: Credit Agreement (Global Employment Holdings, Inc.)
Accounts. Each Lien Grantor represents, warrants and covenants as follows:
(a) Each Such Lien Grantor hereby covenants and agrees that it shall keep and maintain at will use commercially reasonable efforts to cause to be collected from its own cost and expense satisfactory and complete records of account debtors, when due, all amounts owing under its Accounts (including delinquent Accounts, including records which will be collected in accordance with lawful collection procedures) and will apply all amounts collected thereon, forthwith upon receipt thereof, to the outstanding balances of all payments received and all credits granted on such Accounts. Subject to the rights of the Collateral Agent and the other Secured Parties hereunder if an Event of Default shall have occurred and be continuing, such Lien Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) any extension or renewal of the time or times for payment, or settlement for less than the total unpaid balance, that such Lien Grantor finds appropriate in accordance with sound business judgment and (ii) refunds or credits, all merchandise returned in the ordinary course of business and all other dealings therewithconsistent with such Lien Grantor's historical collection practices. The costs and expenses (including attorney's fees) of collection, whether incurred by such Lien Grantor or the Collateral Agent, shall be paid by such Lien Grantor.
(b) Upon If payments with respect to any of such Lien Grantor's Accounts are received in a lockbox or similar account, such Lien Grantor will at all times 30 days (or such longer period, not exceeding 75 days, as the occurrence of Administrative Agent may approve, such approval not to be unreasonably withheld) or more after the Effective Date, (i) cause such account to be a Controlled Deposit Account and (ii) cause the relevant depositary bank to subordinate to the relevant Transaction Lien all its claims to such account (except its right to deduct its normal operating charges and any uncollected funds previously credited thereto). The Collateral Agent will instruct the relevant depositary bank to transfer funds credited to any such account, as promptly as practicable after receipt thereof, to a concentration account which is a Controlled Deposit Account designated by such Lien Grantor; provided that, if an Event of Default that is shall have occurred and be continuing, each the Collateral Agent may designate the Controlled Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such Lien Grantor hereby covenants and agrees thatwill, at if requested to do so by the request of the Security Collateral Agent, it shall ▇▇▇▇ conspicuously, promptly notify (and such Lien Grantor authorizes the Collateral Agent so to notify) each account debtor in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing respect of any of its Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Collateral Agent for the benefit of the Secured Parties hereunder, and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts payments due or to become due in respect of such Accounts are to any Grantor thereunder be made directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Collateral Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agentits designee.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights therein.
Appears in 1 contract
Accounts. (a1) Each Grantor Borrower hereby covenants represents and agrees that it shall keep warrants to the Agent and maintain at its own cost and expense satisfactory and complete records of its the Lenders, with respect to the Borrowers' Accounts, including records that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the applicable Borrower, or rendition of services by applicable Borrower, in the ordinary course of applicable Borrower's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to the Borrower and disclosed to the Agent pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent in Borrowing Base Certificates delivered in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by any Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all payments received goods described in any invoice representing a sale of goods will have been delivered to the Account Debtor and all credits granted on such Accounts, all merchandise returned and all other dealings therewithservices of a Borrower described in each invoice will have been performed.
(b2) Upon The Borrowers shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the occurrence Borrowers' business or extend or modify any Account. If a Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an Event of Default that is continuingamount greater than $1,000,000, each Grantor hereby covenants including information regarding the Account Debtor's creditworthiness, such Borrower will promptly so advise the Agent and agrees that, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that exclude such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest thereinAccount from Eligible Accounts.
(c3) The Security Agent Borrowers shall have not accept any note or other instrument (except a check or other instrument for the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make immediate payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjust, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (imoney) with respect to any such Accounts in existence on Account without the date hereof, on or prior Agent's written consent. If the Agent consents to the date hereof acceptance of any such instrument, it shall be considered as evidence of the Account and (ii) not payment thereof and the applicable Borrower will promptly deliver such instrument to the Agent, endorsed by such Borrower to the Agent in a manner satisfactory in form and substance to the Agent. Regardless of the form of presentment, demand, notice of protest with respect to any thereto, the Borrowers shall remain liable thereon until such Accounts hereafter arising, immediately, instrument is paid in full.
(4) The Borrowers shall notify the Agent promptly of all disputes and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral claims in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 with any Account Debtor, and agrees to settle, contest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the UCCBorrowers' business when no Event of Default exists hereunder. The Borrowers shall send the Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued, each Grantor and the Borrowers shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 promptly report that credit on Borrowing Base Certificates submitted by or on behalf of the UCCBorrowers. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Agent or the Majority Lenders, as applicable, shall consider advisable and, in all cases, the Agent will credit the Borrowers' Loan Account with the net amounts received by the Agent in payment of any Accounts.
(5) over If an Account Debtor returns any Inventory to a Borrower when no Event of Default exists, then such Accounts Borrower shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrower Representative shall, promptly upon obtaining knowledge thereof, report to the Agent any return involving an amount in excess of $1,000,000. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to a Borrower when an Event of Default exists, such Borrower, upon the request of the Agent, shall: (xi) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof returned Inventory and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinreturned Inventory shall not be Eligible Inventory.
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Accounts. (ai) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, in a manner consistent with prudent business practice, including records of all payments received and received, all credits granted on such Accountsthereon, all merchandise returned and all other dealings therewith.
documentation relating thereto. Each Grantor shall, at such Grantor’s sole cost and expense, upon the Secured Party’s demand made at any time after the occurrence and during the continuance of any Event of Default, deliver all tangible evidence of Accounts, including all documents evidencing Accounts and any books and records relating thereto to the Secured Party or to its representatives (b) copies of which evidence and books and records may be retained by such Grantor). Upon the occurrence and during the continuance of any Event of Default, the Secured Party may transfer a full and complete copy of any Grantor’s books, records, credit information, reports, memoranda and all other writings relating to the Accounts to and for the use by any person that has acquired or is contemplating acquisition of an interest in the Accounts or the Secured Party’s security interest therein without the consent of any Grantor. Upon the occurrence and during the continuance of any Event of Default that is continuingDefault, each Grantor hereby covenants and agrees thatshall legend, at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, Secured Party and in form and manner reasonably satisfactory to the Security AgentSecured Party, all Chattel Paperthe Accounts and the other books, Instruments records and other items documents of such Grantor evidencing Accounts (other than any delivered or pertaining to the Security Agent as provided herein) Accounts with an appropriate reference to the fact that such the Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties Party and that the Security Agent Secured Party has a Security Interest security interest therein.
(cii) So long as no Event of Default has occurred and is continuing, the Grantors may settle, adjust or compromise any claim, offset, counterclaim or dispute with any Account Debtor. At any time that an Event of Default has occurred and is continuing, the Secured Party shall, at its option, have the exclusive right to settle, adjust or compromise any claim, offset, counterclaim or dispute with Account Debtors or grant any credits, discounts or allowances.
(iii) The Security Agent Secured Party shall have the right (but not the obligation) at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereoftimes, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, name of any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if requiredapplicable Grantor, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor Secured Party’s name or in respect the name of a nominee of the AccountsSecured Party, any Supporting Obligation or Collateral Support shall be received in trust for to verify the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not adjustvalidity, settle or compromise the amount or payment of any Accounts, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the Security Agent.
(d) With respect other matter relating to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced byor other Collateral, by mail, telephone, facsimile transmission or constitutesotherwise, Chattel Paper, and each Grantor shall cause each originally executed copy thereof cooperate fully with the Secured Party in an effort to be delivered to the Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) with respect to facilitate and promptly conclude any such Accounts in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. With respect to any Accounts constituting Collateral in excess of $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts hereafter arising, within 30 days of such Grantor acquiring rights thereinverification process.
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Sources: Security and Pledge Agreement (Gelesis Holdings, Inc.)