Collateral Security. 4.01 The property in which a security interest is granted pursuant to the provisions of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateral, together with all of the Borrower's other property of any kind held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated. 4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, including, but without limitation, any balance or share belonging to the Borrower of any deposit or other account with the Bank, which lien and security interest shall be independent of any right of set-off which the Bank may have. 4.03 As further security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof: (A) Accounts; (B) Inventory; (C) Equipment; (D) rights as seller of goods and rights to returned, rejected or repossessed goods; (E) General Intangibles, including without limitation those described on Schedule 4 hereto; and (F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank. 4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens. 4.05 The Borrower represents and warrants to the Bank as follows: (A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges. (B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens. (C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent. (D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing: (i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment; (ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same; (iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason; (iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom; (v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof; (vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent; (vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens; (viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts; (ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and (x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts. (E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Collateral Security. 4.01 The property in which a As collateral security interest is granted pursuant to for the provisions payment of Sections 4.02 this Note and 4.03 is herein collectively called the "Collateral." The Collateral, together with all other Liabilities (as hereinafter defined) of the Borrower's other property of any kind Borrowers, now or hereafter owned or held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by Borrowers grant the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, and pledge and assign to the Bank all amounts that may be owing from time to time monies and/or other property now or hereafter held by the Bank to the Borrower in (and/or any capacityentity controlling, including, but without limitation, any balance controlled by or share belonging to the Borrower of any deposit or other account under common control with the Bank, each such entity referred to herein as an “Affiliate”) on deposit, in safekeeping, or otherwise, for the account of or to the credit of or belonging to the Borrowers or in which lien the Borrowers shall have any interest, all of which is hereinafter termed the collateral security. At any time, after the occurrence and security interest shall be independent during the continuance of any right an Event of set-off which Default, without demand or notice, the Bank may have.
4.03 As further security for set off all deposits, credits, collateral and property, now or hereafter in the prompt satisfaction of all Obligations possession, custody, safekeeping or control of the BorrowerBank or any Affiliate, the Borrower hereby assignsor in transit to any of them, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, any part thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining apply the same to any of the foregoing. In addition Liabilities even though unmatured and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner regardless of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Liabilities. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Collateral Security. 4.01 Right of Set-Off. The property in which a security interest is granted pursuant to payment of any and all sums owing under the provisions of Sections 4.02 Loan Documents (including, without limitation, the Master Agreement) and 4.03 is herein collectively called the "Collateral." The Collateralall other obligations, together with all direct or contingent, joint, several or independent, of the Borrower's other property of Company or any kind Guarantor now or hereafter existing due or to become due to, or held or to be held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained whether created directly or acquired by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, assignment or otherwise including, but without limitation, any balance or share belonging arising under this Agreement (all of such obligations being hereinafter collectively called the "Obligations"), are secured by and the Company and any Guarantor hereby grant to the Borrower of any deposit or other account with the Bank, which lien and a continuing lien, security interest shall be independent of any and right of set-off which setoff as security for all liabilities and obligations to the Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of Bank of America, N.A., its successors and assigns, or in transit to any of them. At any time, without demand or notice (any such notice being expressly waived by the Company), the Bank may have.
4.03 As further security for set off the prompt satisfaction same or any part thereof and apply the same to any liability or obligation of all Obligations Company or any Guarantor even though unmatured and regardless of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Netsmart Technologies Inc)
Collateral Security. 4.01 The property in which a security interest is granted pursuant to the provisions (a) To secure payment and performance of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateral, together with all of the Borrower's other property of any kind held by the BankObligations, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by the Bank until all such Obligations have been satisfied in fullKMC hereby reaffirms its grant to Lender of, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the BorrowerKMC II hereby grants to Lender, the Borrower hereby assigns, transfers and sets over to the Bank all extent permitted by law, a right of its right, title and interest in and to, and grants the Bank a lien on setoff against and a continuing security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, including, but without limitation, any balance or share belonging to the Borrower of any deposit or other account with the Bank, which lien and security interest shall be independent of any right of set-off which the Bank may have.
4.03 As further security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to all of such Borrower's tangible and intangible personal property, fixtures and real property leasehold and easement interests, whether now owned or existing, or hereafter acquired or arising, wheresoever located, including, without limitation, all of the followingfollowing property, wherever locatedor interests in property: (a) all machinery, equipment and fixtures, including without limitation, fiber optic and other cables, transmission and switching equipment, transmission facilities, connection equipment, conduit, carrier pipes, junctions, regenerators, power sources, alarm systems, electronics, structures and shelters and cable laying equipment; (b) all Accounts, accounts receivable, other receivables, contract rights, leases, chattel paper, investment property, and general intangibles of such Borrower (including, without limitation, goodwill, going concern value, patents, trademarks, trade names, service marks, blueprints, designs, product lines and research and development), including, without limitation, all of such Borrower's rights under all present and future Governmental Approvals, permits, licenses and franchises heretofore or hereafter granted to such Borrower for the operation and ownership of its Systems (excluding licenses and permits issued by the FCC, any PUC or any other Governmental Authority to the extent, and only to the extent, it is unlawful to grant a security interest in such licenses and permits, but including, to the maximum extent permitted by law, all rights incident or appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits), whether now owned or hereafter acquired by such Borrower, or arisingin which such Borrower may now have or hereafter acquire an interest; (c) all instruments, together with letters of credit, documents of title, policies and certificates of insurance, securities, bank deposits, deposit accounts (including such Borrower's Collection Accounts), checking accounts and cash now or hereafter owned by such Borrower, or in which such Borrower may now have or hereafter acquire an interest; (d) all replacements therefor, proceedsinventory, including insurance proceedsall merchandise, thereof raw materials, work in process, finished goods and supplies, now or hereafter owned by such Borrower or in which such Borrower may now have or hereafter acquire an interest; (e) all of such Borrower's leasehold interest in any real property, all of such Borrower's licenses, easements and rights of way with respect to real property; (f) all accessions, additions or improvements to, substitutions for and all proceeds and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of, all of goods and rights to returned, rejected or repossessed goods;
(E) General Intangiblesthe foregoing, including without limitation those described on Schedule 4 heretoproceeds of insurance; and
and (Fg) all books books, records, documents, computer tapes and records pertaining discs relating to any all of the foregoing. In addition KMC hereby reaffirms the Collateral Assignment of Licenses and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner each of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration Assignments of value given by the Bank, the sufficiency of which the Borrower hereby acknowledgesLeases.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Loan and Security Agreement (KMC Telecom Holdings Inc)
Collateral Security. 4.01 (a) The property in which a security due and punctual payment of the principal or Purchase Price of and interest is granted pursuant on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Notes and performance of all other obligations of the Company to the provisions of Sections 4.02 Holders or the Trustee under this Indenture and 4.03 is herein collectively called the "Collateral." The CollateralNotes, together with all according to the terms hereunder or thereunder, are secured by a first priority, perfected pledge of the Borrower's other property Collateral under the Security Document which the Company has entered into simultaneously with the execution of any kind held this Indenture and which is attached as Exhibit B hereto.
(b) Each Holder, by the Bank, shall stand as one general, continuing collateral security for all Obligations its acceptance of the Borrower Notes, consents and agrees to the terms of the Security Document (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be retained by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that effect or may be owing amended from time to time in accordance with its terms and authorizes and directs the Trustee to enter into the Security Document and to perform its obligations and exercise its rights thereunder as a Secured Party in accordance therewith.
(c) The Company will do or cause to be done all such acts and things as may be required by applicable law or may be necessary or proper, or as may be required by the Bank provisions of the Security Document, to assure and confirm to the Borrower Trustee the security interest in the Collateral contemplated hereby, by the Security Document or any capacitypart thereof, includingas from time to time constituted, but without limitationso as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company will take, and will cause its Subsidiaries to take, upon request of the Trustee, any balance or share belonging and all actions reasonably required to cause the Borrower of any deposit or other account with the BankSecurity Document to create and maintain, which lien and security interest shall be independent of any right of set-off which the Bank may have.
4.03 As further as security for the prompt satisfaction of all Note Obligations of the BorrowerCompany hereunder, a valid and enforceable perfected first priority Lien in and on all the Collateral, in favor of the Trustee, as Secured Party, for the benefit of the Holders, superior to and prior to the rights of all third Persons.
(d) Notwithstanding (i) anything to the contrary contained in this Indenture, the Borrower hereby assignsSecurity Document, transfers and sets the Notes or any other instrument governing, evidencing or relating to any Debt, (ii) the time, order or method of attachment of any Liens, (iii) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral, (iv) the time of taking possession or control over to any Collateral or (v) the Bank all rules for determining priority under the Uniform Commercial Code as in effect in Washington, D.C. or any other law of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all any relevant jurisdiction governing relative priorities of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceedssecured creditors, including insurance proceeds, thereof and products thereofthe British Virgin Islands:
(A) Accounts;the Liens will rank at least equally and ratably with all valid, enforceable and perfected Liens, whenever granted upon any present or future Collateral, but only to the extent such Liens are permitted under this Indenture to exist and to rank equally and ratably with the Notes; and
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner proceeds of the Collateral and grants applied under the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or Security Document shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consentallocated and distributed as set forth in Section 5.10.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Indenture (Tu Guo Shen)
Collateral Security. 4.01 The property in which a security interest is granted pursuant to the provisions (a) To secure payment and ------------------- performance of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateral, together with all of the Borrower's other property of any kind held by the BankObligations, shall stand as one general, continuing collateral security for all Obligations each of the Borrower and may be retained by Borrowers hereby reaffirms its grant to the Bank until all such Obligations have been satisfied in fullCollateral Agent of, and this Agreement shall have been terminated.
4.02 As security hereby regrants to the Collateral Agent for the prompt satisfaction of all Obligations benefit of the BorrowerCollateral Agent, the Borrower hereby assignsAdministrative Agent and the Lenders, transfers and sets over to the Bank all extent permitted by law, a right of its right, title and interest in and to, and grants the Bank a lien on setoff against and a continuing security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, including, but without limitation, any balance or share belonging to the Borrower of any deposit or other account with the Bank, which lien and security interest shall be independent of any right of set-off which the Bank may have.
4.03 As further security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to all of such Borrower's tangible and intangible personal property, fixtures and real property leasehold and easement interests, whether now owned or existing, or hereafter acquired or arising, wheresoever located, including, without limitation, all of the followingfollowing property, wherever locatedor interests in property: (a) all machinery, equipment, Telecommunications Equipment and fixtures, including without limitation, fiber optic and other cables, transmission and switching equipment, transmission facilities, connection equipment, conduit, carrier pipes, junctions, regenerators, power sources, alarm systems, electronics, structures and shelters and cable laying equipment; (b) all Accounts, accounts receivable, other receivables, contract rights, leases, chattel paper, investment property, and general intangibles of such Borrower (including, without limitation, goodwill, going concern value, patents, trademarks, trade names, service marks, blueprints, designs, product lines and research and development), including, without limitation, all of such Borrower's rights under all present and future Governmental Approvals, permits, licenses and franchises heretofore or hereafter granted to such Borrower for the operation and ownership of its Systems (excluding licenses and permits issued by the FCC, any PUC or any other Governmental Authority to the extent, and only to the extent, it is unlawful to grant a security interest in such licenses and permits, but including, to the maximum extent permitted by law, all rights incident or appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits), whether now owned or hereafter acquired by such Borrower, or arisingin which such Borrower may now have or hereafter acquire an interest; (c) all instruments, together with letters of credit, documents of title, policies and certificates of insurance, securities, bank deposits, deposit accounts (including such Borrower's Collection Accounts), checking accounts and cash now or hereafter owned by such Borrower, or in which such Borrower may now have or hereafter acquire an interest; (d) all replacements therefor, proceedsinventory, including insurance proceedsall merchandise, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of raw materials, work in process, finished goods and rights to returnedsupplies, rejected now or repossessed goods;
hereafter owned by such Borrower or in which such Borrower may now have or hereafter acquire an interest; (E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(Fe) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledgeleasehold interest in any real property, there are no setoffsall of such Borrower's licenses, counterclaims or disputes existing or asserted easements and rights of way with respect to the Accounts real property; (f) all accessions, additions or improvements to, substitutions for and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledgeall proceeds and products of, all of the Account Debtors have the capacity foregoing, including proceeds of insurance; and (g) all books, records, documents, computer tapes and discs relating to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that all of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accountsforegoing.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Collateral Security. 4.01 The property in which a security interest is granted pursuant payment of any and all sums owing under ------------------- the Loan Documents, the obligation to reimburse the provisions of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateral, together with all Bank for any amount paid to FNB on account of the BorrowerCompany's obligations under Master Agreement as set forth in Section 2.17 hereof and all other property obligations, direct or contingent, joint, several or independent, of any kind the Company now or hereafter existing due or to become due to, or held or to be held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained whether created directly or acquired by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, assignment or otherwise including, but without limitation, any balance or share belonging arising under this Agreement (all of such obligations being hereinafter collectively called the "Obligations"), are secured by and the Company hereby grants to the Borrower of any deposit or other account with the Bank, which lien and a lien, security interest shall be independent of any and right of set-off which setoff as security for all liabilities and obligations to the Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of Fleet Boston Corporation, its successors and assigns, or in transit to any of them. At any time, without demand or notice, the Bank may have.
4.03 As further security for set off the prompt satisfaction same or any part thereof and apply the same to any liability or obligation of all Obligations Company even though unmatured and regardless of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE TERM LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hi Tech Pharmacal Co Inc)
Collateral Security. 4.01 The As security for the prompt and unconditional payment of all obligations and liabilities of Applicant to Issuer and all of Issuer's claims against Applicant, whether arising or incurred under this Agreement or otherwise, whether now existing or hereafter incurred, and whether now or hereafter owing to or acquired in any manner by Issuer ("Obligations"), Applicant hereby grants to Issuer a first-priority security interest in Applicant's present and future rights in all of the following property:
(a) Applicant's property in Issuer's actual or constructive possession or in transit to Issuer or Issuers correspondents from or for Applicant, whether for collection or otherwise;
(b) deposits (general and special) and credits of Applicant with Issuer or any Compass Bank Affiliate (including, without limitation, any deposit made pursuant to Section 15 hereof), including items in safekeeping with Issuer's agent or bailee, and any claims by Applicant against Issuer at any time existing;
(c) additional property In which Applicant has conveyed a security interest to Issuer or which Applicant agrees to convey upon demand of Issuer, and
(d) proceeds of any of the foregoing (all of which, together with additions, accessions or substitutions, is granted pursuant to the provisions of Sections 4.02 and 4.03 is herein hereafter collectively called the "Collateral." The Collateral, together with ") until such time as all of the Borrower's other property of any kind held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by the Bank until all such Obligations have been satisfied in fullfully discharged. Applicant agrees to sign and/or deliver to Issuer, and this Agreement shall have been terminated.
4.02 As upon Issuers request, such security for the prompt satisfaction agreements, mortgages, deeds of all Obligations of the Borrowertrust, the Borrower hereby assignsassignments. documents, transfers and sets over instruments or financing statements as Issuer may require to the Bank all of its rightperfect, title and interest in and to, and grants the Bank a lien on and register or record a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, including, but without limitation, item of Collateral or to foreclose upon any balance or share belonging such item and to reimburse issuer for all costs relating thereto. Upon and during the Borrower continuance of any deposit or other account with the Bank, which lien and security interest shall be independent of any right of set-off which the Bank may have.
4.03 As further security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuineEvent of Default (defined below), in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account DebtorApplicant's business or financial condition; and
condition or the Collateral, (xiii) none material change or threatened change in the direct or indirect ownership or control of Applicant or that segment of our business involved in the Accounts is pursuant underlying transaction, (iv) injunction action, beneficiary wrongful dishonor action, or other event that threatens to an invoice requiring payment extend or increase Issuer's contingent liability beyond the time, amount, or other limit provided in more than 30 daysthe Credit or this Agreement, except for Accounts representing Applicant must deposit with Issuer, on demand, cash amount(s) in the aggregate not more than 5% amount of the Obligations. On receipt of the cash deposit, Issuer shall issue certificate(s) of deposit in Applicant's name to be held by Issuer as additional Collateral under the preceding paragraph. The maturity dates for the certificates of deposit shall be as agreed by the parties or, absent agreement, as determined in good faith by Issuer in light of the nature of the Obligations. Interest and all Accounts.
(E) With respect to Inventoryother terms shall be those then offered by Issuer for certificates of deposit of comparable amount and maturity. For purposes of this Section 11, the Borrower has correct term "Issuer" shall include Compass Bank and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereatany Compass Bank affiliate.
Appears in 1 contract
Sources: Irrevocable Standby Letter of Credit (Viper Motorcycle Co)
Collateral Security. 4.01 The property payment of any and all sums owing under the Loan Documents, the Company's obligations under Master Agreement as set forth in which a security interest is granted pursuant to the provisions of Sections 4.02 Section 2.17 hereof and 4.03 is herein collectively called the "Collateral." The Collateralall other obligations, together with all direct or contingent, joint, several or independent, of the Borrower's other property of any kind Company now or hereafter existing due or to become due to, or held or to be held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained whether created directly or acquired by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, assignment or otherwise including, but without limitation, any balance or share belonging arising under this Agreement (all of such obligations being hereinafter collectively called the "Obligations"), are secured by and the Company and the Guarantor each hereby grants to the Borrower of any deposit or other account with the Bank, which lien and a continuing lien, security interest shall be independent of any and right of set-off which setoff as security for all liabilities and obligations to the Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of FleetBoston Financial Corporation, its successors and assigns, or in transit to any of them. At any time, without demand or notice, the Bank may have.
4.03 As further security for set off the prompt satisfaction same or any part thereof and apply the same to any liability or obligation of all Obligations Company or the Guarantor even though unmatured and regardless of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE TERM LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR THE GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hi Tech Pharmacal Co Inc)
Collateral Security. 4.01 The property in which a grant of the security interest interest, assignment, transfer and conveyance effected by Section 1 hereof is granted pursuant to made by Assignor for the provisions following purposes:
(a) To secure the payment of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateralindebtedness for borrowed money evidenced by the Note, together with all of the Borrower's other property interest thereon, and any extensions, modifications and/or renewals thereof and any notes given in payment of any kind held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, including, but without limitation, any balance or share belonging to the Borrower of any deposit or other account with the Bank, which lien and security interest shall be independent of any right of set-off which the Bank may have.
4.03 As further security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accountsprincipal and/or interest;
(Bb) Inventory;To secure the payment of all court costs, expenses and costs of whatever kind incident to the collection of any indebtedness or enforcement of any obligations secured hereby and the enforcement or protection of the lien and/or security interest of this instrument, including reasonable attorney's fees; and
(Cc) Equipment;
(D) rights as seller To secure the payment of goods any and rights all other indebtednesses of the Company and/or Assignor to returnedAssignee, rejected however evidenced or repossessed goods;
(E) General Intangiblesdenominated, and however and whenever incurred, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining indebtednesses incurred pursuant to any previous, present or future commitment of the foregoing. In addition and as further security, the Borrower will execute and deliver Assignee to the Bank security agreements Company and/or Assignor. The execution and such other documents, including financing statements, in connection herewith as delivery of this Assignment shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair or diminish any obligations of Assignor under the validity or enforceability Operating Agreement, nor shall any such obligations be imposed upon Assignee. Upon the payment of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledgeprincipal of, and all interest on, and all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result other sums payable in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventoryof, the Borrower has correct indebtedness evidenced by the Note and accurate records itemizing all other sums and describing the type and quantity of Inventoryobligations secured by this Assignment, and the Borrowerperformance and observance of the provisions of any and all documents relating to the Note, the grant of the security interest, assignment, transfer and conveyance effected by Section 1 hereof and all rights herein assigned to Assignee shall cease and terminate and all the estate, right and title of Assignor to the Assignor's cost therefor Interests shall revert to Assignor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereatthis Assignment shall be of no further force and effect.
Appears in 1 contract
Sources: Loan Agreement (Data National Corp)
Collateral Security. 4.01 The property in which a security interest is granted pursuant payment of any and all sums owing under the ------------------- Loan Documents, the obligation to reimburse the provisions of Sections 4.02 and 4.03 is herein collectively called the "Collateral." The Collateral, together with all Bank for any amount paid to FNB on account of the BorrowerCompany's obligations under Master Agreement as set forth in Section 2.17 hereof and all other property obligations, direct or contingent, joint, several or independent, of any kind the Company now or hereafter existing due or to become due to, or held or to be held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained whether created directly or acquired by the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, all amounts that may be owing from time to time by the Bank to the Borrower in any capacity, assignment or otherwise including, but without limitation, any balance or share belonging arising under this Agreement (all of such obligations being hereinafter collectively called the "Obligations"), are secured by and the Company hereby grants to the Borrower of any deposit or other account with the Bank, which lien and a lien, security interest shall be independent of any and right of set-off which setoff as security for all liabilities and obligations to the Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of Fleet Boston Corporation, its successors and assigns, or in transit to any of them. At any time, without demand or notice, the Bank may have.
4.03 As further security for set off the prompt satisfaction same or any part thereof and apply the same to any liability or obligation of all Obligations Company even though unmatured and regardless of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining to any of the foregoing. In addition and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE TERM LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hi Tech Pharmacal Co Inc)
Collateral Security. 4.01 The property in which a As collateral security interest is granted pursuant to for the provisions payment of Sections 4.02 this Note and 4.03 is herein collectively called the "Collateral." The Collateral, together with all other Liabilities (as hereinafter defined) of the Borrower's other property of any kind Borrowers, now or hereafter owned or held by the Bank, shall stand as one general, continuing collateral security for all Obligations of the Borrower and may be retained by Borrowers grant the Bank until all such Obligations have been satisfied in full, and this Agreement shall have been terminated.
4.02 As security for the prompt satisfaction of all Obligations of the Borrower, the Borrower hereby assigns, transfers and sets over to the Bank all of its right, title and interest in and to, and grants the Bank a lien on and a security interest in, and pledge and assign to the Bank all amounts that may be owing from time to time monies and/or other property now or hereafter held by the Bank to the Borrower in (and/or any capacityentity controlling, including, but without limitation, any balance controlled by or share belonging to the Borrower of any deposit or other account under common control with the Bank, each such entity referred to herein as an “Affiliate”) on deposit, in safekeeping, or otherwise, for the account of or to the credit of or belonging to the Borrowers or in which lien the Borrowers shall have any interest, all of which is hereinafter termed the collateral security. At any time after the occurrence and security interest shall be independent during the continuance of any right an Event of set-off which Default, without demand or notice, the Bank may have.
4.03 As further security for set off all deposits, credits, collateral and property, now or hereafter in the prompt satisfaction of all Obligations possession, custody, safekeeping or control of the BorrowerBank or any Affiliate, the Borrower hereby assignsor in transit to any of them, transfers and sets over to the Bank all of its right, title and interest in and to, and grants to the Bank a lien on and security interest in, all of its right, title and interest in and to the following, wherever located, whether now owned or hereafter acquired or arising, together with all replacements therefor, proceeds, including insurance proceeds, any part thereof and products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or repossessed goods;
(E) General Intangibles, including without limitation those described on Schedule 4 hereto; and
(F) all books and records pertaining apply the same to any of the foregoing. In addition Liabilities even though unmatured and as further security, the Borrower will execute and deliver to the Bank security agreements and such other documents, including financing statements, in connection herewith as shall be required by the Bank.
4.04 The liens created in Sections 4.02 and 4.03 shall be first and prior liens, subject only to Permitted Liens.
4.05 The Borrower represents and warrants to the Bank as follows:
(A) The Borrower is the owner regardless of the Collateral and grants the security interest made in Sections 4.02 and 4.03 in consideration of value given by the Bank, the sufficiency of which the Borrower hereby acknowledges.
(B) Other than the security interests granted in Sections 4.02 and 4.03, the Collateral is free from any lien, security interest, encumbrance or other right, title or interest adequacy of any other Person except for Permitted Lienscollateral securing the Liabilities. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(C) All Collateral is kept solely at the location or locations identified in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be kept, stored or maintained with a bailee, warehouseman, carrier or similar party without the Bank's prior written consent.
(D) With respect to Accounts, except as otherwise disclosed by the Borrower to the Bank in writing:
(i) the Accounts are genuine, in all respects what they purport to be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in accordance with the terms and provisions contained in the invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and statements evidencing same, are actually and absolutely owing to the Borrower and are not contingent for any reason;
(iv) to the best of the Borrower's knowledge, there are no setoffs, counterclaims or disputes existing or asserted with respect to the Accounts and the Borrower has not made any agreement with any Account Debtor thereof for any deduction therefrom;
(v) to the best of the Borrower's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability of the Accounts or tend to reduce the amount payable thereunder from the amount thereof;
(vi) to the best of the Borrower's knowledge, all of the Account Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts are not subject to any lien, claim, encumbrance or security interest except that of the Bank and except for Permitted Liens;
(viii) the Borrower has no knowledge of any fact or circumstance which would impair the validity or collectability of the Accounts;
(ix) to the best of the Borrower's knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor which might result in a material adverse change in such Account Debtor's financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment in more than 30 days, except for Accounts representing in the aggregate not more than 5% of all Accounts.
(E) With respect to Inventory, the Borrower has correct and accurate records itemizing and describing the type and quantity of Inventory, and the Borrower's cost therefor and selling price thereof; provided, however, that it is acknowledged that Borrower does not maintain a perpetual inventory at its manufacturing facility, but rather performs an annual physical inventory thereat.
Appears in 1 contract