Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 5 contracts
Samples: Security Agreement (Majestic Safe-T-Products LTD), Security Agreement (Majestic Safe-T-Products LTD), Security Agreement (Majestic Companies LTD)
Collection of Accounts. The Lender, at any time or from time to time following Upon the occurrence and pendancy of an Event of Default Default, Agent may require Borrower to maintain lockboxes (the "Lockboxes") and instruct all Account Debtors to remit all amounts owed by them to one of such Lockboxes. Borrower, Agent, and the Lockbox Banks shall enter into the Lockbox Agreements, which is among other things shall provide for the opening of a continuing Event Lockbox Account for the deposit of Collections at the applicable Lockbox Bank. Notwithstanding the Borrower's cure of any Events of Default, Agent may continue to require Borrower to comply with the provisions of this section. Borrower agrees that all Collections received by Borrower while the provisions of this section are in effect from any Account Debtor or any other source immediately upon receipt shall be deposited into a Lockbox Account or into deposit accounts that are not the subject of a Lockbox Agreement and unless and until the same is cured (if from which Borrower has the right shall remit all funds contained therein to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all one of the rights contained herein Lockbox Accounts (any such deposit account, a "Qualified Local Deposit Account"); PROVIDED, HOWEVER, Borrower shall maintain no more than 50 Qualified Local Deposit Accounts; PROVIDED FURTHER, HOWEVER, that all Collections received into such Qualified Local Deposit Accounts shall be wired directly or indirectly no less frequently than weekly to directly collect all Accountsthe Concentration Account. No Lockbox Agreement or other arrangement contemplated thereby shall be modified by Borrower without the prior written consent of Agent. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and subject to the conditions and purposes and intent of this Agreementset forth in the Lockbox Agreements, all amounts received in each Lockbox Account shall be wired directly or indirectly each Business Day into the Concentration Account. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee amounts received in the Concentration Account shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with wired each Business Day into an interest, is irrevocable while any of account (the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented "Agent's Account") maintained by any of the Accounts, without notice to or consent Agent at a depository selected by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofAgent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Phonetel Technologies Inc), Loan and Security Agreement (Phonetel Technologies Inc)
Collection of Accounts. The LenderCollateral Agent as agent for the Secured Parties hereby authorizes the Debtor to collect and dispose of the proceeds of the Accounts, which authority the Collateral Agent may curtail or terminate at any time or from time to time following the occurrence and during the continuance of an Event of Default which is a continuing any Event of Default. After such authority has been curtailed or terminated, the Debtor shall, upon receipt of all checks, drafts, cash, and unless and until the same is cured (if Borrower has the right to cure such Event other remittances in payment of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any on account of the Accounts, and thereafter deposit the Lender same in a special account designated by the Collateral Agent, over which account the Collateral Agent as agent for the Secured Parties alone shall have the sole right to collect power of withdrawal (the Receivables and take possession “Collection Account”). The remittance of the proceeds of such Accounts and Records relating theretoshall not, however, constitute payment or liquidation of such Accounts until the Collateral Agent as agent for the Secured Parties shall receive good funds for such proceeds. All For purposes of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as providedcomputing interest, the Lender Collateral Agent shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all treat deposited checks, drafts and other instruments items as collected in accordance with the Collateral Agent’s normal availability schedule, but in doing so the Collateral Agent is not agreeing that such funds have in fact been paid, nor is the Collateral Agent as agent for the payment of money relating Secured Parties waiving any right it may have to charge back returned items to the AccountsDebtor and to collect interest on such charged-back items. Funds placed in the Collection Account shall be held by the Collateral Agent as agent for the Secured Parties as security for the Obligations. These proceeds shall be deposited in precisely the form received, except for the endorsement of the Debtor where necessary to permit collection of items, which endorsement the Debtor agrees to make, and which endorsement the Borrower Collateral Agent is also hereby waives notice authorized to make on behalf of presentment, protest and non-payment of any instrument so endorsedthe Debtor. If the Lender is collecting the Accounts, directly as above providedPending such deposit, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon Debtor agrees that it will not commingle any note, acceptances, such checks, drafts, money orders cash or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on remittances with any invoice relating to any funds or other property of the Accounts, drafts against customers, assignments Debtor but will hold them separate and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approvedapart therefrom, and such attorney or designee shall not be liable upon an express trust for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law the Collateral Agent until deposit thereof is made in accordance with this Agreementthe Collection Account. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of Collateral Agent as agent for the Secured Parties will from time to time apply the funds on deposit in the Collection Account against the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time in such order of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender application as is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent required by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofIntercreditor Agreement.
Appears in 2 contracts
Samples: Security Agreement, Security Agreement (Trex Co Inc)
Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, (a) Secured Party hereby authorizes and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority permits Debtor to collect the Accounts and-from its debtors. This privilege may exercise be terminated by Secured Party at any or time after notice from Secured Party upon the occurrence and during the continuance of a Triggering Event under the Settlement and Restructuring Agreement (a "Notice of Default"), and Debtor shall execute, upon demand therefor, such assignments so as to vest in Secured Party full title to the Accounts (to the extent permitted under applicable law), and Secured Party thereupon shall be entitled to and have all of the rights contained herein ownership, title, rights, securities and guarantees of Debtor with respect thereto, and with respect to directly collect all Accounts. Upon such a termination the property evidenced thereby, including the right of stoppage in transit, and Secured Party may notify any debtor or debtors of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice assignments of the Lender's security interest Accounts and collect the same; thereafter, Debtor will receive all payments on the Accounts as agent of and for Secured Party and will transmit to any Secured Party, on the day of receipt thereof, all original checks, drafts, acceptances, notes and all customers other evidence of payment received in payment of or any third party holding or otherwise concerned with any on account of the Accounts, including all cash moneys similarly received by Debtor. Until such delivery, Debtor shall keep all such remittances separate and thereafter apart from Debtor's own funds, capable of identification as the Lender property of Secured Party, and shall have hold the sole right same in trust for Secured Party. After Notice of Default from the Secured Party, all items or amounts that are delivered by Debtor to collect the Receivables and take possession Secured Party on account of partial or full payment or otherwise as Proceeds of any of the Accounts and Records relating thereto. All Collateral shall be deposited in accordance with the terms of the Lender's collection expenses shall be charged Settlement and Restructuring Agreement. To the extent permitted by law, Secured Party or its representatives is hereby authorized to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as providedendorse, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name of Debtor, any item, howsoever received by Secured Party, representing any payment on or other proceeds of any of the Collateral, and may endorse or sign the name of Debtor to any accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to Accounts or the Borrower's name any and property covered thereby requested by Secured Party. Debtor shall promptly give Secured Party, upon demand, copies of all checks, drafts and other instruments for the payment of money relating to the Accounts, to be accompanied by such information and the Borrower hereby waives notice by such documents or copies thereof as Secured Party may reasonably require. After Notice of presentmentDefault from Secured Party, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power Debtor shall maintain such records with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices the conduct and operation of its business as Secured Party may reasonably request, and will furnish to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed Secured Party all information with respect to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower conduct and operation of any of the terms its business, including balance sheets, operating statements and conditions thereofother financial information, as Secured Party may reasonably request from time to time.
Appears in 2 contracts
Samples: Security Agreement (Omega Healthcare Investors Inc), Security Agreement (Advocat Inc)
Collection of Accounts. The Lender, at any time or from time to time following Bank hereby authorizes the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority Debtor to collect all Accounts from the Account Debtors. The Proceeds of Accounts and-may exercise any or all so collected by the Debtor shall be received and held by the Debtor in trust for the Bank. Unless otherwise agreed by the Bank, the Debtor shall deliver to the Bank within one day of the rights contained herein to directly collect receipt thereof by the Debtor all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Proceeds in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment form of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptancescash, checks, drafts, money orders notes and other remittances received in payment of or other evidences on account of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Debtor's Accounts. Such Proceeds shall be deposited in a special non-interest bearing bank account (the "Cash Collateral Account") maintained with the Bank over which the Bank alone shall have power of withdrawal. All Proceeds other than cash shall be deposited in precisely the form in which received, drafts against customersexcept for the addition thereto of the endorsement of the Debtor when necessary to permit collection of the items, assignments which endorsement the Debtor agrees to make. The Debtor will not commingle any such Proceeds with any of the Debtor's other funds or property but will hold them separate and verifications apart from any other funds or property and upon an express trust for the Bank until deposit thereof is made in the Cash Collateral Account. Periodically, at the Bank's discretion, the Bank will apply all or any part of the collected Proceeds of Accounts on deposit in the Cash Collateral Account to the payment in full or in part of such of the Liabilities and notices in such order as the Bank may elect. The authority hereby given to Customers; (c) the Debtor to send verifications collect the Proceeds of Accounts in trust for the Bank may be terminated by the Bank at any time. The Bank shall have the right at any time, acting if it so chooses in the Debtor's name, to collect the Debtor's Accounts itself, to sell, assign, compromise, discharge or extend the time for payment of any customer; (d) Account, to notify institute legal action for the Post Office authorities to change the address for delivery collection of mail addressed to the Borrower; (f) any Account, and to do all other acts and things necessary, proper, necessary or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreementincidental thereto. The power of attorney Debtor hereby granted, being coupled with an interest, is irrevocable while any of ratifies all that the Obligations remain unpaidBank shall do by virtue hereof. The Lender mayBank may at any time, without notice to or the Debtor, notify any Account Debtor that the Account payable by such Account Debtor has been assigned to the Bank and is to be paid directly to the Bank. At the Bank's request the Debtor shall so notify Account Debtors and shall indicate on all xxxxxxxx to Account Debtors that payments thereon are to be made to the Bank. Without the written consent from of the BorrowerBank, xxx upon or otherwise collectthe Debtor shall not compromise, discharge, extend the time of for payment of or compromise otherwise grant any indulgence or settle for cash, credit or otherwise upon allowance with respect to any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofAccount.
Appears in 2 contracts
Samples: Security Agreement (Imagemax Inc), Reimbursement Agreement (Lannett Co Inc)
Collection of Accounts. The Lender(a) Prior to the occurrence of a Compliance Triggering Event or Event of Default, Borrowers shall retain control of their cash, including payments and proceeds of Collateral. Concurrently with this Agreement, Borrowers shall establish and maintain, at any time their expense, blocked accounts or from time lockboxes and related blocked accounts (in either case, “Blocked Accounts”), as Lender may specify, with such banks as are acceptable to time following Lender. Such Blocked Accounts may be Central Collection Deposit Accounts, and the term Blocked Accounts shall mean and include the Central Collection Deposit Accounts. Upon and after the occurrence of an Event of Default which is or a continuing Compliance Triggering Event (until the occurrence of Defaulta Compliance Reinstatement Date related thereto, if any), and unless upon Lender’s request, Borrowers shall promptly deposit into one or more Blocked Accounts and until direct their account debtors to directly remit into such Blocked Accounts all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the same identical form in which such payments are made, whether by cash, check or other manner. Concurrently with this Agreement, Borrowers shall deliver, or cause to be delivered to Lender, a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is cured maintained which agreement shall provide that upon notice from Lender (if Borrower has the right to cure such which shall be given upon an Event of Default hereunder) may terminate or a Compliance Triggering Event and revoked upon the Borrower's authority occurrence of a Compliance Reinstatement Date related thereto, if any), such bank will send funds on a daily basis to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any Payment Account and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power instruction with respect to such Blocked Account only from Lender. Promptly upon Lender’s request, Borrowers shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrowers agree that after notice by Lender to the Accounts: (a) bank under the Deposit Account Control Agreement, all payments made to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 2 contracts
Samples: Canadian Loan and Security Agreement (Guess Inc Et Al/Ca/), Loan and Security Agreement (Guess Inc Et Al/Ca/)
Collection of Accounts. The LenderBorrower shall at all times maintain lockboxes (the "Lockboxes") and, at any time or from time to time following immediately after the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured Closing Date (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or not already done so), shall instruct all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power Account Debtors with respect to the Accounts: , General Intangibles, and Negotiable Collateral of Borrower to remit all Collections in respect thereof to such Lockboxes. Borrower, Agent, and the Lockbox Banks shall enter into the Lockbox Agreements, each of which among other things shall provide for the opening of a Lockbox Account for the deposit of Collections at a Lockbox Bank. Borrower agrees that all Collections and other amounts received by Borrower from any Account Debtor or any other source immediately upon receipt shall be deposited into a Lockbox Account; provided, however, that (a) until Agent, in its reasonable credit judgment, shall notify Borrower to indorse the Borrower's name upon contrary, Collections may be deposited by individual stores, in the ordinary course of business, into a local depositary that is not a Lockbox Bank and thereupon any notecollected funds from such deposited Collections shall be wire transferred within one Business Day to a Lockbox Account, acceptances, checks, drafts, money orders or other evidences subject to nonmaterial amounts which may take longer to be transferred from the local depository accounts as a result of payment that may come into the Lender's possessiondata transmission errors; and (b) to sign Borrower may retain $500 of cash in each of its retail store locations. No Lockbox Agreement or arrangement contemplated thereby shall be modified by Borrower without the Borrower's name on any invoice relating to any prior written consent of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out Agent. Upon the terms and subject to the conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law set forth in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the BorrowerLockbox Agreements, all without discharging amounts received and collected in each Lockbox Account shall be wired each Business Day into another Lockbox or in any way affecting into an account (the Borrower"Agent's liability hereunder. The Lender does not, Account") maintained by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance Agent at a depositary selected by the Borrower of any of the terms and conditions thereofAgent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Samuels Jewelers Inc), Loan and Security Agreement (Samuels Jewelers Inc)
Collection of Accounts. (a) The Borrowers shall establish and maintain, at their joint and several expense, such blocked accounts ("Blocked Accounts"), as Lender may specify, with such banks as Borrower selects and are reasonably acceptable to Lender, into which each Borrower shall promptly deposit or cause to be deposited all payments on Accounts and all payments constituting proceeds of other Collateral in the identical form in which such payments are made, whether by cash, check or other manner; provided, however, that with respect to the proceeds of Accounts and other Collateral received on a particular day, if, at any time all times during the immediately preceding 30 days (i) all accrued interest or fees that have become due and payable to Lender during such period have been paid when due, (ii) no Event of Default has occurred and (iii) there has been Excess Availability on an average daily basis (after giving effect to all outstanding Letter of Credit Accommodations) of at least $5,000,000, then Borrowers shall not be required to deposit or transfer the proceeds of Accounts and other Collateral received on such day to the Blocked Accounts or a Payment Account. All such proceeds that are not deposited or transferred to a Blocked Account shall be deposited to bank accounts of the applicable Borrower which have been identified to Lender in writing, and such proceeds shall be used only for Borrowers' working capital or other proper corporate purposes not otherwise prohibited by the terms hereof. The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, providing that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence of an Event of Default which is a continuing Event of Defaultdepository bank will wire, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any transfer, in immediately available funds, on a daily basis, all funds received or deposited into the Blocked Accounts to such bank account of the Accounts, and thereafter the Lender shall have the sole right as Lender may from time to collect the Receivables and take possession of the time designate for such purpose ("Payment Account"). Each Borrower agrees that all payments made to such Blocked Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name , whether on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments as proceeds of other Collateral or insurances applicable thereto or release otherwise shall be the obligor thereon. The Lender is authorized and empowered to accept the return property of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp)
Collection of Accounts. The Lender, at any time or from time (a) Prior to time following the occurrence of an Compliance Triggering Event of Default which is a continuing or Event of Default, Borrowers shall retain control of their cash, including payments and unless proceeds of Collateral. Concurrently with this Agreement, Borrowers shall establish and until the same is cured maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (if Borrower has the right in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to cure such Event of Default hereunder) Lender. Such Blocked Accounts may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Central Collection Deposit Accounts, and the Borrower hereby waives term Blocked Accounts shall mean and include the Central Collection Deposit Accounts. Upon an Event of Default or an Compliance Triggering Event, and during any Availability Compliance Period (related to a Compliance Triggering Event), and upon Lender's request, Borrowers shall promptly deposit into one or more Blocked Accounts and direct their account debtors to directly remit into such Blocked Accounts all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Concurrently with this Agreement, Borrowers shall deliver, or cause to be delivered to Lender, a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained which agreement shall provide that upon notice from Lender (which shall be given upon an Event of presentmentDefault or an Compliance Triggering Event and revoked promptly after the related Availability Compliance Reinstatement Date), protest and non-payment of any instrument so endorsed. If such bank will send funds on a daily basis to the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power Payment Account and otherwise take instruction with respect to such Blocked Account only from Lender. Promptly upon Lender's request, Borrowers shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrowers agree that after notice by Lender to the Accounts: (a) bank under the Deposit Account Control Agreement, all payments made to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (Guess Inc Et Al/Ca/), Loan and Security Agreement (Guess Inc Et Al/Ca/)
Collection of Accounts. The (a) Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, “Blocked Accounts”), as Lender may specify, with such banks as are acceptable to Lender into which Borrower shall promptly deposit and direct its account debtors to directly remit all payments on Receivables that constitute Collateral and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. At Lender’s option, Borrower shall deliver, or cause to be delivered to Lender, a Depository Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) Lender may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power become bank’s customer with respect to the Accounts: (a) Blocked Accounts and promptly upon Lender’s request, Borrower shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrower shall cause all funds received or deposited into the Blocked Accounts to indorse be transferred each Business Day to the Borrower's name upon any note, acceptances, checks, drafts, money orders Lender Payment Account. Borrower agrees that all payments made to such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables that constitute Collateral, drafts against customers, assignments as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Lender in respect of the Obligations and verifications therefore shall constitute the property of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed Lender to the Borrower; extent of the then outstanding Obligations. Notwithstanding anything to the contrary contained in this Section 6.3(a), Lender agrees that, in the event Lender and Borrower are unable to agree with Reference Bank, within thirty (f30) days subsequent to do all other acts and things necessarythe date hereof, proper, or convenient to carry out regarding the terms and conditions of a new Depository Account Control Agreement with respect to Borrower’s Blocked Accounts located at Reference Bank, to replace the existing blocked account agreement previously executed with respect to such Blocked Accounts among Reference Bank , Lender and Borrower, then Lender shall accept such existing blocked account agreement for purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance Section 6.3(a) with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice respect to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the ’s Blocked Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofat Reference Bank.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
Collection of Accounts. The Lender, at any time or from time to time following Bank hereby authorizes the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority Debtor to collect all Accounts from the Account Debtors. The Proceeds of Accounts and-may exercise any or all so collected b y the Debtor shall be received and held by the Debtor in trust for the Bank. After a default hereunder, the Debtor shall deliver to the Bank within one day of the rights contained herein to directly collect receipt thereof by the Debtor all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Proceeds in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment form of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptancescash, checks, drafts, money orders notes and other remittances received in payment of or other evidences on account of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Debtor's Accounts. Such proceeds shall be deposited in a special non-interest bearing bank account (the "Cash Collateral Account") maintained with the Bank over which the Bank alone shall have power of withdrawal. All Proceeds other than cash shall be deposited in precisely the form in which received, drafts against customersexcept for the addition thereto of the endorsement of the Debtor when necessary to permit collection of the items, assignments which endorsement the Debtor agrees to make. The Debtor will not commingle any such Proceeds with any of the Debtor's other funds or property but will hold them separate and verifications apart from any other funds or property and upon an express trust for the Bank until deposit thereof is made in the Cash Collateral Account. Periodically, at the Bank's discretion, the Bank will apply all or any part of the collected Proceeds of Accounts on deposit in the Cash Collateral Account to the payment in full or in part of such of the Liabilities and notices in such order as the Bank may elect. The authority hereby given to Customers; (c) the Debtor to send verifications collect the Proceeds of Accounts in trust for the Bank may be terminated by the Bank at any time. The Bank shall have the right at any time, acting if it so chooses in the Debtor's name, to collect the Debtor's accounts itself, to sell, assign, compromise, discharge or extend the time for payment of any customer; (d) Account, to notify institute legal action for the Post Office authorities to change the address for delivery collection of mail addressed to the Borrower; (f) any Account, and to do all other acts and things necessary, proper, necessary or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreementincidental thereto. The power of attorney Debtor hereby granted, being coupled with an interest, is irrevocable while any of ratifies all that the Obligations remain unpaidBank shall do by virtue hereof. The Lender mayBank may at any time, after default hereunder, without notice to or the Debtor, notify any Account Debtor that the Account payable by such Account Debtor has been assigned to the Bank and is to be paid directly to the Bank. At the Bank's request the Debtor shall so notify Account Debtors and shall indicate on all xxxxxxxx to Account Debtors that payments thereon are to be made to the Bank. Without the written consent from of the BorrowerBank, xxx upon or otherwise collectthe Debtor shall not compromise, discharge, extend the time of for payment of or compromise otherwise grant any indulgence or settle allowance with respect to any Account, except for cashimmaterial discounts, credit credits, rebates or otherwise upon any terms, any reductions in the ordinary course of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofbusiness consistent with past practice.
Appears in 2 contracts
Samples: Security Agreement (Vermont Pure Holdings LTD), Security Agreement (Vermont Pure Holdings LTD)
Collection of Accounts. The Debtor shall, unless Lender requires Debtor to establish a lockbox arrangement upon the occurrence and during the continuation of an Event of Default (as defined in paragraph 9), collect all Accounts, and whenever Debtor shall receive any payment of any Account, Debtor shall hold such payment in trust for Lender. Debtor authorizes Lender to endorse the name of Debtor upon any checks or other items received in payment of any Account and to do any and all things necessary in order to reduce the same to money. During the continuance of any Event of Default, Debtor also authorizes Lender, at without notice, to appropriate and apply any time balances, credits, deposits, accounts or money of Debtor in Lender's possession, custody or control to the payment of any of the Obligations. If any of the Accounts arise out of contracts with or orders from time the United States or any State or any department, agency or instrumentality thereof, but subject to time following the terms and conditions set forth in the Credit Agreement, Debtor shall immediately notify Lender thereof in writing and shall execute any instrument and take any steps required by Lender in order that all money due and to become due under such contract or order shall be assigned to Lender and due notice thereof given to the appropriate governmental agency. Subject to the terms and conditions set forth in the Credit Agreement with respect to U.S. government Accounts, Debtor agrees to execute, deliver, file and record all such notices, affidavits, assignments, financing statements and other instruments as shall in the judgment of Lender be necessary or desirable to evidence, validate and perfect the security interest of Lender in the Accounts; provided, however, that until the occurrence of an Event of Default which Default, Debtor shall not be required to comply with the Federal Assignment of Claim Act (provided further that said Accounts may not be included in the "Borrowing Base" following and 107 during the continuation of an "Event of Default" until compliance is a continuing completed, as set forth in the Credit Agreement). Upon the occurrence and during the continuation of an Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment notify any persons or notice of the Lender's security interest entities owning any Accounts and to any demand and all customers or any third party holding or otherwise concerned with any of the Accountsreceive payment, and thereafter the but Lender shall have no duty so to do. Upon the sole right to collect occurrence and during the Receivables continuation of an Event of Default and take possession upon the request of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, Debtor shall notify such account debtors and shall indicate on all invoices to such account debtors that the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofaccounts are payable into a lockbox.
Appears in 2 contracts
Samples: Credit Agreement (Best Lock Corp), Credit Agreement (Best Universal Lock Co)
Collection of Accounts. The LenderBorrower shall use its best ---------------------- efforts to cause to be collected from each Account Debtor, at as and when due, any time and all amounts owing under or from time on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to time following be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the occurrence outstanding balance of such Account. The Borrower may rescind or cancel any indebtedness or obligation evidenced by any Account, modify, make adjustments to, extend, renew, compromise or settle any material dispute, claim, suit or legal proceeding relating to or sell or assign any Account, or interest therein, provided that -------- the Borrower obtains the written consent of the Bank prior to doing any of the foregoing (which consent shall not be unreasonably or untimely withheld or delayed) Notwithstanding the foregoing, subject to the rights of the Bank under the Loan Documents, unless a Default or an Event of Default shall have occurred and be continuing, the Borrower may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which is the Borrower finds appropriate in accordance with sound business judgment and (ii) a continuing Event refund or credit due as a result of Defaultdiscounts, over-xxxxxxxx and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate miscellaneous credits, all in accordance with the Borrower's authority to collect ordinary course of business consistent with its historical collection practices. The reasonable costs and expenses (including, without limitation, reasonable attorneys' fees) of collection, whether incurred by the Accounts and-may exercise any Borrower or all of the rights contained herein to directly collect all AccountsBank, shall be borne by the Borrower. Upon such a termination the sale or assignment of any Account as allowed by this Section 5.07, the Bank will (as soon as reasonably practicable after receipt of notice from the Borrower requesting the same but at the expense of the Borrower's authority, the Lender shall have the right to ) send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend for each jurisdiction in which a UCC financing statement is on file to perfect the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned security interests granted to the LenderBank hereunder, and a termination statement to the Lender shall not be responsible in any way for effect that the performance by the Borrower of any of the terms and conditions thereofBank no longer claims a security interest under such financing statement.
Appears in 2 contracts
Samples: Credit Agreement (Trex Co Inc), Credit Agreement (Trex Co Inc)
Collection of Accounts. The LenderLender may, at any time or and from time to time following after the occurrence and during the continuance of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any whether before or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest after notification to any Account Debtor and all customers whether before or any third party holding or otherwise concerned with after the maturity of any of the AccountsObligations, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon enforce collection of any note, acceptances, checks, drafts, money orders of Borrowers’ Accounts or other evidences of payment that may come into the Lender's possessionamounts owed to Borrowers by suit or otherwise; (b) exercise all of Borrowers’ rights and remedies with respect to sign the Borrower's name on proceedings brought to collect any invoice relating Accounts or other amounts owed to Borrowers; (c) surrender, release or exchange all or any part of any Accounts or other amounts owed to any of the AccountsBorrowers, drafts against customers, assignments and verifications of Accounts and notices to Customers; or compromise or extend or renew for any period (cwhether or not longer than the original period) to send verifications of Accounts to any customerindebtedness thereunder; (d) sell or assign any Account of a Borrower or other amount owed to notify the Post Office authorities a Borrower upon such terms, for such amount and at such time or times as Lender deems advisable; (e) prepare, file and sign a Borrower’s name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to change the address for delivery of mail addressed to the such Borrower; and (f) to do all other acts and things which are necessary, properin Lender’s reasonable discretion, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while fulfill any of the Obligations remain unpaidBorrowers’ obligations under the Loan Documents and to allow Lender to collect the Accounts or other amounts owed to Borrowers. The In addition to any other provision hereof, Lender maymay at any time, without notice to or consent from after the Borroweroccurrence and during the continuance of an Event of Default, xxx upon or otherwise collectat Borrowers’ expense, extend the time of payment of or compromise or settle for cash, credit or otherwise upon notify any terms, parties obligated on any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The to make payment directly to Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofamounts due or to become due thereunder.
Appears in 1 contract
Samples: Credit and Security Agreement (Clark Holdings Inc.)
Collection of Accounts. The Lender(a) Secured Party conditionally authorizes Debtor to collect accounts from Debtor's account debtors provided, however, this privilege may be terminated by Secured Party at any time or from time upon an Event of Default and, upon such Event of Default, Secured Party shall have all of Debtor's rights, title, and interest in the accounts (to time following the extent permitted under applicable law), including a right of stoppage in transit. After the occurrence of an Event of Default which is a continuing Event of Default, and unless and until Secured Party (to the same is cured (if Borrower has the right to cure such Event of Default hereunderextent permitted under applicable law) may terminate the Borrower's authority to collect the Accounts and-may exercise notify any or all account debtor(s) of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the LenderSecured Party's security interest in Debtor's accounts and shall be entitled to collect same, and Debtor will thereafter receive all accounts payments as the agent of and as trustee for Secured Party and will deliver to Secured Party on the day of receipt, all checks, cash, drafts, acceptances, notes and other accounts payments and, until such delivery, Debtor shall not use or commingle any accounts payments and shall at all customers times keep all such remittances separate and apart from Debtor's own funds, capable of identification as the Secured Party's property. Secured Party and its representatives are hereby authorized to endorse in Debtor's name, any item received by the Secured Party representing any payment on or any third party holding or otherwise concerned with proceeds of any of the AccountsCollateral, and thereafter may sign Debtor's name upon all accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to the Lender shall have account debtors, the sole right to collect the Receivables and take possession of the Accounts and Records relating proceeds therefrom, or property related thereto. All Debtor shall promptly give Secured Party copies of the Lender's collection expenses all accounts statements, accompanied by such additional information, documents, or copies thereof, as Secured Party may request. Debtor shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and maintain all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power records with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments accounts and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed with respect to the Borrower; (f) to do all general conduct and operation of Debtor's business, including balance sheets, operating statements and other acts and things necessaryfinancial information, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized generally accepted accounting principles and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofas Secured Party may request.
Appears in 1 contract
Samples: Security Agreement (Advocat Inc)
Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and collect all customers or any third party holding or otherwise concerned with any of the Accounts, unless and thereafter the Lender until a Default or an Event of Default has occurred and is continuing. Whether or not an Event of Default has occurred and is continuing, Borrower shall have the sole right hold all payments on, and proceeds of, Accounts in trust for Silicon ** and Borrower shall immediately deliver all such payments and proceeds to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall Silicon in their original form, duly endorsed, to be charged applied to the Borrower's account and added to the ObligationsObligations in such order as Silicon shall determine. If the Lender is collecting the Accounts as providedSilicon may, the Lender shall have the right to receivein its good faith business judgment, indorse, assign and deliver in the Lender's name or the Borrower's name any and require that all checks, drafts and other instruments for the payment proceeds of money relating to the Accounts, and the Collateral be deposited by Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, propera lockbox account, or convenient such other "blocked account" as Silicon may specify, pursuant to carry out the terms and conditions and purposes and intent of this Agreementa blocked account agreement in such form as Silicon may specify in its good faith business judgment. All acts of such attorney or designee are hereby ratified and approved* COLLECTION OF ACCOUNTS; DOMINION ACCOUNT ** . FROM AND AFTER THE DATE (IF EVER) THAT BORROWER MAINTAINS LESS THAN THE DESIGNATED AMOUNT (AS DEFINED BELOW) OF UNRESTRICTED CASH ON DEPOSIT IN BORROWER'S DEPOSIT ACCOUNTS AT SILICON OR THAT AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoingBORROWER SHALL IMMEDIATELY DELIVER ALL SUCH PAYMENTS AND PROCEEDS, nor for any error of judgment or mistake of fact of law in accordance with this AgreementIN THEIR ORIGINAL FORM, DULY ENDORSED, AND ALL OTHER MONETARY PROCEEDS OF COLLATERAL, INTO SUCH LOCKBOX ACCOUNT OR OTHER "BLOCKED ACCOUNT" AS SILICON MAY SPECIFY, PURSUANT TO A LOCKBOX/BLOCKED ACCOUNT AGREEMENT IN SUCH FORM AS SILICON MAY SPECIFY IN ITS GOOD FAITH BUSINESS JUDGMENT (THE "DOMINION ACCOUNT"). The power of attorney hereby grantedSILICON SHALL HAVE THE RIGHT, being coupled with an interestUPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT, is irrevocable while any of the Obligations remain unpaidTO APPLY ALL SUCH PAYMENTS ON, AND PROCEEDS OF, ACCOUNTS AND OTHER PROCEEDS OF COLLATERAL (INCLUDING AMOUNTS IN THE DOMINION ACCOUNT) TO THE OBLIGATIONS IN SUCH ORDER AS SILICON SHALL DETERMINE. The Lender mayAS USED HEREIN, without notice to or consent from the BorrowerTHE TERM "DESIGNATED AMOUNT" MEANS, xxx upon or otherwise collectAS OF ANY DATE OF DETERMINATION, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofTHE SUM OF (y) $4,000,000 PLUS (z) THE AGGREGATE OUTSTANDING AMOUNT OF OBLIGATIONS (IF ANY).
Appears in 1 contract
Samples: Loan and Security Agreement (First Virtual Communications Inc)
Collection of Accounts. The Lender(a) Secured Party conditionally authorizes Debtor to collect accounts from Debtor's account debtors provided, however, this privilege may be terminated by Secured Party at any time or from time upon an Event of Default and, upon such Event of Default, Secured Party shall have all of Debtor's rights, title, and interest in the accounts (to time following the extent permitted under applicable law), including a right of stoppage in transit. After the occurrence of an Event of Default which is a continuing Default, Secured Party (to the extent permitted under applicable law) may notify any account debtor(s) of Secured Party's security interest in Debtor's accounts and shall be entitled to collect same, and, Debtor will thereafter receive all accounts payments as the agent of and as trustee for Secured Party and will deliver to Secured Party on the day of receipt, all checks, cash, drafts, acceptances, notes and other accounts payments and, until such delivery, Debtor shall not use or commingle any accounts payments and shall at all times keep all such remittances separate and apart from Debtor's own funds, capable of identification as the Secured Party’s property. After the occurrence of an Event of Default, Secured Party and unless and until its representatives are hereby authorized to endorse in Debtor's name, any item received by the same is cured (if Borrower has the right to cure such Event Secured Party representing any payment on or proceeds of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the AccountsCollateral, and thereafter may sign Debtor's name upon all accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to the Lender shall have account debtors, the sole right to collect the Receivables and take possession of the Accounts and Records relating proceeds therefrom, or property related thereto. All Debtor shall promptly give Secured Party copies of the Lender's collection expenses all accounts statements, accompanied by such additional information, documents, or copies thereof, as Secured Party may request. Debtor shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and maintain all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power records with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any accounts of the Accounts, drafts against customers, assignments Facilities and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed with respect to the Borrower; (f) to do all general conduct and operation of Debtor's business at the Facilities, including balance sheets, operating statements and other acts and things necessaryfinancial information, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized generally accepted accounting principles and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofas Secured Party may reasonably request.
Appears in 1 contract
Samples: Security Agreement (Diversicare Healthcare Services, Inc.)
Collection of Accounts. The Lender, at any time or from time to time following the Upon an occurrence of an Event event of Default default under this Agreement, which is a continuing Event not cured by Client as provided in Section 8 hereunder, Trinity agrees to diligently, carefully and lawfully perform in its own name or Client's name the services of Defaultadministering, demanding and unless collecting the Accounts, receipt and until accounting for the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority proceeds thereof and paying or otherwise discharging both necessary and reasonable outside costs and expenses incurred in connection therewith. Client shall pay and/or reimburse Trinity for all costs, fees and expenses, including, without limitation, attorneys' fees, incurred by Trinity to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender Trinity shall have the right to send notice of assignment make allowances, extend, defer, credit, adjust or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned settle with any debtor on any Account without notice to or consent of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating theretoClient. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts The Client appoints Trinity as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's its attorney-in-fact with power with respect to receive, open, and dispose of all mail addressed to the Accounts: (a) business pertaining to indorse Receivables; to endorse the BorrowerClient's name upon any notenotes, acceptances, checks, drafts, money orders or orders, and other evidences of payment of Receivables that may come into the LenderTrinity's possession, and to deposit or otherwise collect the same; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient necessary to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby grantedThis power, being coupled with an interest, is irrevocable while any of the Obligations Receivable shall remain unpaid. The Lender mayClient agrees at all times to allow Trinity or its agents, to examine, audit and make extracts and copies of any books and records pertaining to the Accounts, including bank records and reconciliations thereof; and to use Client's premises for this purpose, at any reasonable time, without cost to Trinity. After default by Client hereunder, Client shall pay and/or reimburse Trinity for all costs, fees and expenses incurred by Trinity in the actions described in the preceding sentence. Client further agrees to furnish Trinity with a monthly aging of the Accounts and such other instruments, documents, papers and information relating to the Accounts, which shall be the property of Trinity, as Trinity shall require from time to time, including, but not limited to, all original purchase orders or contracts, invoices, bills of lading, proof of delivery and related correspondence and memoranda. Client shall immediately advise Trinity of any asserted set-off, credit or deduction by any debtor of the Accounts or the occurrence of any dispute, default or incident that may in any way impair such Accounts or tend to reduce the amount thereof. Client shall have no right and agrees not to make allowance, extension, deferral, credit, adjustment or settlement with any debtor on any Account without in each case the written consent of Trinity, which such consent shall not be unreasonably withheld. If in Trinity's sole judgment, the credit worthiness of any debtor of a receivable purchased by Trinity becomes impaired before delivery of the related goods and/or rendition of services to such debtor, Client will, upon Trinity's request, at Client's expense use its best efforts to stop delivery of goods and/or rendition of services to such debtor, provided that Client has received advances on Accounts relating to said goods and/or rendition of services prior to delivery of said goods and/or rendition of services to account debtor. Should any suits, arbitration or other proceedings be instituted for the collection or enforcement of any Account or in defense thereof, Client shall, without expense to Trinity, make available such of its officers, employees, agents, books, records and files, and retain counsel and experts, as may be necessary and expedient to make proper proof therein. All proceeds of the Accounts received by Client shall be held IN TRUST for Trinity and immediately delivered to Trinity, in kind. Client hereby authorizes Trinity, at any time, to debit its bank(s) account(s) at any banking institution it maintains account(s) and banking relationship(s), at Trinity's option, without notice to Client, for any and all proceeds of the Accounts received by Client, but not delivered to Trinity, in kind. Notwithstanding anything to the contrary in this Agreement, provided that Client is not in default under this Accounts Receivable Purchase and Security Agreement or consent any other agreements between Client and Trinity, Client shall not be required to place Trinity's name on any invoices Client presents to its customers. Notwithstanding anything to the contrary in this Agreement, Client hereby agrees to require its customers to pay and remit all payments for the Accounts directly by Client's customers to Trinity's lockbox address at X.X. Xxx 00000, Xxxxxxx, XX 00000 (lockbox at Bank of America, Chicago), or any other lockbox address Trinity may require in the future. In the event (i) any Account shall not be collected by Trinity within ninety (90) days after the invoice date; (ii) any Account is due from a debtor which has, or against which was, filed a petition in bankruptcy or for reorganization under the Borrowerbankruptcy laws, xxx upon makes an assignment for the benefit of its creditors, has a receiver appointed for its property, suspends its business, is or otherwise collect, extend becomes insolvent or defaults in the time of payment of other indebtedness to Client or compromise Trinity; (iii) any Account is due from a debtor which is then debtor on Accounts aggregating in face amount twenty five (25%) or settle more of the Accounts then outstanding; (iv) any Account shall be subject to any dispute, claim, charge, counter-claim or set-off by the debtor thereon; (v) the debtor of any Account refuses to execute and deliver to Trinity a waiver of set-off, in form and substance acceptable to Trinity, if required by Trinity at any time hereafter; (vi) Trinity is requested or required to return any collection on an Account as a voidable preference or other transfer under the bankruptcy laws; or (vii) any other circumstance shall occur with respect to any Account which shall impair the collection thereof; Trinity may thereupon, or at its option at any time thereafter, charge said Account back to Client and Client shall repurchase said Account from Trinity, without recourse, for casha sum equal to the amount paid to Client by Trinity therefore, credit plus the Servicing Fee and applicable interest expense thereon calculated at 2.0% per month or otherwise upon any termsat the highest rate allowed by law from such due date until paid in full, at Trinity's sole discretion. Client hereby exonerates Trinity for, and agrees to indemnify, defend and hold Trinity, its officers, directors, employees, attorneys, accountants and agents harmless from and against, any and all claims, demands, charges, expenses, including attorneys' fees, damages, actions, and causes of action, whether at law or in equity, now or hereafter existing, and howsoever arising, and in connection with the past, present or future actions of Client, Trinity or their agents in the administration, prosecution or collection of the Accounts or any securitiesthe Collateral, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice howsoever related to or consent otherwise arising or alleged to arise, whether by virtue of Trinity's interest in the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment Accounts acquired pursuant to this Agreement or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Samples: Accounts Receivable Purchase and Security Agreement (Applied Intelligence Group Inc)
Collection of Accounts. The (a) Borrower shall establish and maintain, at its expense, blocked accounts (“Blocked Accounts”) with such banks as are acceptable to Lender into which Borrower and Obligors shall, in accordance with Lender, ’s instructions after Excess Availability is less than $10,000,000 at any time for a period greater than five (5) consecutive Business Days (even if Excess Availability is subsequently greater than $10,000,000 at any time) or an Event of Default has occurred and is continuing (each, a “Springing Blocked Account Triggering Event”), promptly deposit all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral; provided that, prior to the occurrence and continuation of an Event of Default, Obligors agreement to deposit hereunder shall be limited to payments and proceeds received by such Obligor in Canada, the United States and the United Kingdom. Upon the occurrence and during the continuation of an Event of Default, Lender may, and Borrower and each Obligor shall upon Lender’s request, direct Borrower’s and each Obligor’s account debtors to directly remit all payment on Accounts to the Blocked Accounts. The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, providing FOURTH AMENDED AND RESTATED LOAN AGREEMENT that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence of an depository bank will, after notice from Lender that a Springing Blocked Account Triggering Event of Default has occurred (which is a continuing Event of Defaultnotice shall also be provided by Lender to Borrower), and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authoritywire, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any transfer, in immediately available funds, on a daily basis, all funds received or deposited into the Blocked Accounts to such bank account of the Accounts, Lender as Lender may from time to time designate for such purpose (“Payment Account”). Borrower and thereafter the Lender shall have the sole right each Obligor agrees that all payments made to collect the Receivables and take possession of the such Blocked Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name , whether on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments as proceeds of Inventory or insurances applicable thereto other Collateral or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned otherwise shall be subject to the Lender, and the security of Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofand/or Agents.
Appears in 1 contract
Collection of Accounts. The LenderLender may, at any time or and from time to time following after the occurrence and during the continuance of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any whether before or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest after notification to any Account Debtor and all customers whether before or any third party holding or otherwise concerned with after the maturity of any of the AccountsObligations, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the enforce collection of any of any Borrower's name upon any note, acceptances, checks, drafts, money orders ’s Accounts or other evidences of payment that may come into the Lender's possessionamounts owed to any Borrower by suit or otherwise; (b) exercise all of Borrowers’ rights and remedies with respect to sign the Borrower's name on proceedings brought to collect any invoice relating Accounts or other amounts owed to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to CustomersBorrower; (c) to send verifications surrender, release or exchange all or any part of any Accounts or other amounts owed to any customerBorrower, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder; (d) sell or assign any Account of any Borrower or other amount owed to notify the Post Office authorities any Borrower upon such terms, for such amount and at such time or times as Lender deems advisable; (e) prepare, file and sign any Borrower’s name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to change the address for delivery of mail addressed to the such Borrower; and (f) to do all other acts and things which are necessary, properin Lender’s sole discretion, to fulfill Borrowers’ obligations under the Loan Documents and to allow Lender to collect the Accounts or convenient other amounts owed to carry out any Borrower. In addition to any other provision hereof, Lender may at any time, after the terms occurrence and conditions and purposes and intent during the continuance of this Agreement. All acts an Event of such attorney or designee are hereby ratified and approvedDefault, and such attorney or designee shall not be liable for at Borrowers’ expense, notify any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, parties obligated on any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The to make payment directly to Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofamounts due or to become due thereunder.
Appears in 1 contract
Collection of Accounts. The Each Guarantor hereby authorizes the Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right at any time and from time to send time, during the continuance of an Event of Default, without notice of assignment or notice of the Lender's security interest to such Guarantor, subject to any and all customers or any third party holding or otherwise concerned with any of the Accountsrestrictions imposed by applicable law, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse notify any or all account debtors to such Guarantor that the Borrower's name upon any noteLender has a security interest in such Collateral and direct all such Persons to make payments to the Lender or to a lockbox designated by the Lender of all sums owing by them to such Guarantor, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office postal authorities to change the address for delivery of mail to such address as the Lender may designate; (b) to receive, endorse, assign and deliver, in such Guarantor's name or in the name of the Lender, all checks, notes, drafts and other instruments relating to any Collateral, including receiving, opening and properly disposing of all mail addressed to the Borrowersuch Guarantor concerning Accounts Receivable; (fc) to do all other acts sell or assign the Accounts Receivable upon such terms as the Lender may deem advisable; (d) to sign such Guarantor's name on any invoice or bill of lading relating to any account drafts against account debtoxx, on schedules and things necessaryassignments of Accounts Receivable, proper, or convenient to carry out the terms and conditions and purposes and intent on notices of this Agreement. All acts of such attorney or designee are hereby ratified and approvedassignment, and on verifications of Accounts and on notices to account debtors; and (e) to take or bring at such attorney Guarantor's cost, in such Guarantor's name or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any the name of the Obligations remain unpaid. The Lender, all steps, actions and suits deemed by the Lender maynecessary to effect collections and to enforce payment of any Accounts Receivable, without notice to settle, compromise or consent from the Borrowerrelease in whole or in part any amounts owing on Accounts Receivable, xxx upon to prosecute any action or otherwise collectproceeding with respect to Accounts Receivable, to extend the time of payment of any and all Accounts Receivable and to make allowances and adjustments with respect thereto. Any and all disbursements for reasonable costs and expenses incurred or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent paid by the BorrowerLender with respect to the enforcement, all without discharging collection or protection of its interest in the Collateral, or against any way affecting the Borrower's liability hereunder. The Lender does notGuarantor, whether by anything herein or in any assignment suit or otherwise, assume any notification of account debtors and other obligors, including reasonable attorneys' fees, court costs and similar expenses, if any, shall become a part of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance Guaranteed Obligations secured by the Borrower of any of the terms and conditions thereofCollateral, payable on demand.
Appears in 1 contract
Samples: Guaranty Agreement (Tweed John A)
Collection of Accounts. (a) Borrower shall, and shall cause Guarantor to, establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, “Blocked Accounts”), as Lender may specify, with such banks as are acceptable to Lender into which each Borrower and Guarantor shall promptly deposit and direct its account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, at any time providing that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence of an Event of Default which is a continuing Event of Defaultdepository bank will wire, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any transfer, in immediately available funds, on a daily basis, all funds received or deposited into the Blocked Accounts to such bank account of the Accounts, and thereafter the Lender shall have the sole right as Lender may from time to collect the Receivables and take possession of the Accounts and Records relating theretotime designate for such purpose (“Payment Account”). All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with With respect to the Accounts: (a) Blocked Accounts of Guarantor, the depository banks at which such Blocked Accounts are maintained shall transfer the funds on deposit in such Blocked Accounts to indorse such operating bank account of Guarantor as Borrower may specify in writing to Lender until such time as Lender shall notify the Borrower's name upon depository bank otherwise. Upon notice from Lender at any notetime, acceptances, checks, drafts, money orders the depository banks at which such Blocked Accounts of Guarantor are maintained shall transfer all funds received or deposited into such Blocked Accounts to the Payment Account. Borrower agrees that all payments made to the Blocked Accounts or other evidences funds received and collected by Lender (except that as to the Blocked Accounts of payment that may come into Guarantor, only after Lender has notified the Lender's possession; (b) depository account of which to sign such Blocked Accounts are maintained to transfer funds therein to the Borrower's name on any invoice relating to any Payment Account), whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Inverness Medical Innovations Inc)
Collection of Accounts. (a) Borrower shall, and shall cause Guarantor to, establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to Lender into which each Borrower and Guarantor shall promptly deposit and direct its account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, at any time providing that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence of an Event of Default which is a continuing Event of Defaultdepository bank will wire, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any transfer, in immediately available funds, on a daily basis, all funds received or deposited into the Blocked Accounts to such bank account of the Accounts, and thereafter the Lender shall have the sole right as Lender may from time to collect the Receivables and take possession of the Accounts and Records relating theretotime designate for such purpose ("Payment Account"). All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with With respect to the Accounts: (a) Blocked Accounts of Guarantor, the depository banks at which such Blocked Accounts are maintained shall transfer the funds on deposit in such Blocked Accounts to indorse such operating bank account of Guarantor as Borrower may specify in writing to Lender until such time as Lender shall notify the Borrower's name upon depository bank otherwise. Upon notice from Lender at any notetime, acceptances, checks, drafts, money orders the depository banks at which such Blocked Accounts of Guarantor are maintained shall transfer all funds received or deposited into such Blocked Accounts to the Payment Account. Borrower agrees that all payments made to the Blocked Accounts or other evidences funds received and collected by Lender (except that as to the Blocked Accounts of payment that may come into Guarantor, only after Lender has notified the Lender's possession; (b) depository account of which to sign such Blocked Accounts are maintained to transfer funds therein to the Borrower's name on any invoice relating to any Payment Account), whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 1 contract
Collection of Accounts. Until such time that the Lender shall notify the Borrowers of the revocation of such privilege following an Event of Default, the Borrowers and each of their Subsidiaries shall at its own expense have the privilege for the account of, and in trust for, the Lender of collecting its Accounts and receiving in respect thereto all Items of Payment and shall otherwise completely service all of the Accounts including (a) the billing, posting and maintaining of complete records applicable thereto, (b) the taking of such action with respect to the Accounts as the Lender may request or in the absence of such request, as each of the Borrowers and each of the Subsidiaries may deem advisable; and (c) the granting, in the ordinary course of business, to any Account Debtor, any rebate, refund or adjustment to which the Account Debtor may be lawfully entitled, and may accept, in connection therewith, the return of goods, the sale or lease of which shall have given rise to an Account and may take such other actions relating to the settling of any Account Debtor's claim as may be commercially reasonable. The LenderLender may, at its option, at any time or from time to time following after and during the occurrence continuance of an Event of Default which is a continuing Event hereunder, revoke the collection privilege given in this Agreement to any Borrower and any one or more of Defaultthe Subsidiaries by either giving notice of its assignment of, and unless and until lien on the same is cured (if Borrower has Collateral to the right Account Debtors or giving notice of such revocation to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all AccountsBorrowers. Upon such a termination of the Borrower's authority, the The Lender shall not have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accountsduty to, and the Borrower Borrowers hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If release the Lender is collecting from all claims of loss or damage caused by the Accounts, directly as above provided, the Borrower hereby constitutes the Lender delay or the Lender's designee as the Borrower's attorney-in-fact with power with respect failure to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders collect or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, enforce any of the Accounts or to preserve any securities, instruments or insurances applicable thereto or release rights against any other party with an interest in the obligor thereonCollateral. The Lender is authorized shall be entitled at any time and empowered from time to accept the return of the goods represented by any of the time to confirm and verify Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Samples: Financing and Security Agreement (Kimberton Enterprises Inc)
Collection of Accounts. The LenderAny Proceeds of Accounts collected by the Debtor shall be received and held by the Debtor in trust for the Bank. Unless otherwise agreed by the Bank, at any time or from time the Debtor shall deliver to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all Bank within one day of the rights contained herein to directly collect receipt thereof by the Debtor all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Proceeds in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment form of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptancescash, checks, drafts, money orders notes and other remittances received in payment of or other evidences on account of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Debtor's Accounts. Such Proceeds shall be deposited in a special non-interest bearing bank account (the "Cash Collateral Account") maintained with the Bank over which the Bank alone shall have power of withdrawal. All Proceeds other than cash shall be deposited in precisely the form in which received, drafts against customersexcept for the addition thereto of the endorsement of the Debtor when necessary to permit collection of the items, assignments which endorsement the Debtor agrees to make. The Debtor will not commingle any such Proceeds with any of the Debtor's other funds or property but will hold them separate and verifications apart from any other funds or property and upon an express trust for the Bank until deposit thereof is made in the Cash Collateral Account. Periodically, at the Bank's discretion, the Bank will apply all or any part of the collected Proceeds of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify on deposit in the Post Office authorities to change the address for delivery of mail addressed Cash Collateral Account to the Borrower; (f) payment in full or in part of such of the Liabilities and in such order as the Bank may elect. The Bank shall have the right at any time, acting if it so chooses in the Debtor's name, to collect the Debtor's Accounts itself, to sell, assign, compromise, discharge or extend the time for payment of any Account, to institute legal action for the collection of any Account, and to do all other acts and things necessary, proper, necessary or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreementincidental thereto. The power of attorney Debtor hereby granted, being coupled with an interest, is irrevocable while any of ratifies all that the Obligations remain unpaidBank shall do by virtue hereof. The Lender mayBank may at any time, without notice to or the Debtor, notify any Account Debtor that the Account payable by such Account Debtor has been assigned to the Bank and is to be paid directly to the Bank. At the Bank's request upon default the Debtor shall so notify Account Debtors and shall indicate on all xxxxxxxx to Account Debtors that payments thereon are to be made to the Bank. Without the written consent from of the BorrowerBank, xxx upon or otherwise collectthe Debtor shall not compromise, discharge, extend the time of for payment of or compromise otherwise grant any indulgence or settle for cash, credit or otherwise upon allowance with respect to any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofAccount.
Appears in 1 contract
Samples: Security Agreement (Ryka Inc)
Collection of Accounts. The LenderBorrower shall have the right (on its own behalf and on behalf of Spruce, at Thinq and any other Affiliate of Borrower as Bank may designate from time to time) to collect all Accounts, unless and until a Default or an Event of Default has occurred and is continuing. Whether or not an Event of Default has occurred and is continuing, Borrower shall hold all payments on, and proceeds of, Accounts in trust for Bank. Such payments and proceeds shall be applied to the Obligations pursuant to the terms of Section 9.4 hereof. Until such further time as Bank directs pursuant to the last sentence hereof, all proceeds of Accounts shall be deposited into the Restricted Revenue Account(s) with Xxxxx Fargo and shall be subject to the Xxxxx Fargo Lockbox Agreement, except that, in the case of Accounts of Spruce, the proceeds of such Accounts are not required to be deposited into the Restricted Revenue Account(s) with Xxxxx Fargo until the six (6) month anniversary of the Effective Date. Subject to the exception in the preceding sentence, Borrower shall (and shall cause Spruce, Thinq and such other Affiliate as Bank may designate from time to time following to) direct all customers and Account Debtors of Borrower, Spruce, Thinq and/or any other Affiliate of Borrower as Bank may designate to remit all payments owing to such entities to the occurrence Restricted Revenue Account(s) with Xxxxx Fargo and/or such other Restricted Revenue Account(s) as Bank may specify from time to time pursuant to the last sentence hereof. Borrower shall use its best efforts to ensure that all collections of Accounts are paid and delivered into the Restricted Revenue Account(s) with Xxxxx Fargo and/or such other Restricted Revenue Account(s) as Bank may specify from time to time pursuant to the last sentence hereof. If an Event of Default which is has occurred, Bank may require that all proceeds of Accounts be deposited into a continuing Event of DefaultRestricted Revenue Account other than, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authorityin addition to, the Lender shall have the right Restricted Revenue Account(s) with Xxxxx Fargo pursuant to send notice of assignment or notice of the Lender's security interest a Lockbox Agreement in form and substance acceptable to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofBank.
Appears in 1 contract
Collection of Accounts. The LenderLender may, at any time or and from time to time following after the occurrence and during the continuance of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any whether before or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest after notification to any Account Debtor and all customers whether before or any third party holding or otherwise concerned with after the maturity of any of the AccountsObligations, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon enforce collection of any note, acceptances, checks, drafts, money orders of Borrowers’ Accounts or other evidences of payment that may come into the Lender's possessionamounts owed to a Borrower by suit or otherwise; (b) exercise all of each Borrower’s rights and remedies with respect to sign the proceedings brought to collect any Accounts or other amounts owed to such Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) surrender, release or exchange all or any part of any Accounts or other amounts owed to send verifications of Accounts to each Borrower, or compromise or extend or renew for any customerperiod (whether or not longer than the original period) any indebtedness thereunder; (d) sell or assign any Account of each Borrower or other amount owed to notify the Post Office authorities each Borrower upon such terms, for such amount and at such time or times as Lender deems advisable; (e) prepare, file and sign each Borrower’s name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to change the address for delivery of mail addressed to the such Borrower; and (f) to do all other acts and things which are necessary, properin Lender’s sole discretion, to fulfill each Borrower’s obligations under the Loan Documents and to allow Lender to collect the Accounts or convenient other amounts owed to carry out such Borrower. In addition to any other provision hereof, Lender may at any time, after the terms occurrence and conditions and purposes and intent during the continuance of this Agreement. All acts an Event of such attorney or designee are hereby ratified and approvedDefault, and such attorney or designee shall not be liable for at Borrowers’ expense, notify any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, parties obligated on any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The to make payment directly to Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofamounts due or to become due thereunder.
Appears in 1 contract
Samples: Credit and Security Agreement (Mendocino Brewing Co Inc)
Collection of Accounts. The Lender(a) Borrowers shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Agent may specify, with such banks as are acceptable to Agent into which Borrowers shall promptly deposit and direct their respective account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner; provided, that so long as no Default or Event of Default exists, Borrowers shall cause all Fax Checks (as defined below) to be delivered to the Blocked Accounts within three (3) Business Days after Borrowers' receipt thereof and shall cause all Hold Checks (as defined below) to be delivered to the Blocked Accounts within thirty (30) calendar days after Borrowers' receipt thereof. If any Default or Event of Default exists, Borrowers shall cause all Hold Checks and Fax Checks to be immediately delivered to the Blocked Accounts. Borrowers shall deliver, or cause to be delivered to Agent a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following Agent may become the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrowerbank's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power customer with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Blocked Accounts and notices promptly upon Agent's request, Borrowers shall execute and deliver such agreements and documents as Agent may require in connection therewith. Each Borrower agrees that all payments made to Customers; (c) such Blocked Accounts or other funds received and collected by Agent or any Lender, whether in respect of the Receivables, as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts Agent and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lenders in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The Lender may, without notice and therefore shall constitute the property of Agent and Lenders to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securitiesthen outstanding Obligations. As used herein, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof."
Appears in 1 contract
Samples: Loan and Security Agreement (Sed International Holdings Inc)
Collection of Accounts. (a) At Lender’s request, Borrowers shall establish and maintain, at their expense, blocked accounts or lock boxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to Lender. Each Borrower shall promptly deposit and direct their respective account debtors, to directly remit all payments on Receivables, including Accounts and all payments constituting proceeds of Inventory, Equipment or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner into such accounts as Lender may specify, which may be a Blocked Account or an account(s) of Lender (“Lender Accounts”). The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, at any time providing that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Account(s) or Lender Account, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence depository bank will wire, or otherwise transfer, in immediately available funds and in the Reference Currency on a not less than weekly basis all funds received or deposited into the Blocked Accounts to (i) such bank accounts of Lender as Lender may from time to time designate for such purpose in Lender’s discretion(“Payment Account[s]”) and (ii) in Lenders discretion, such bank accounts as Lender may from time to time designate for such purpose(which may or may not be an Event account of Default which is Lender) ("Intermediate Account)"). Lender will wire, or otherwise transfer, in immediately available funds and in the Reference Currency on a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any not less than weekly basis all funds received or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, deposited into the Lender Accounts to such bank accounts of Lender as Lender may from time to time designate for such purpose in Lender’s discretion(“Payment Account[s]”). The bank at which an Intermediate Account is established shall have enter into an agreement, in form and substance satisfactory to Lender, providing that all items received or deposited in the right to send notice Intermediate Account are the property of assignment or notice of Lender and that the Lender's security interest to any and all customers or any third party holding depository bank will wire, or otherwise concerned with any of the Accountstransfer, in immediately available funds and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name Reference Currency, on a daily basis, all funds received or deposited into the Borrower's name any and Intermediate Account to such bank accounts of Lender as Lender may from time to time designate for such purpose (“Payment Account”). Borrowers agree that all checks, drafts and other instruments for the payment of money relating payments made to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the such Blocked Accounts or Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name , whether on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securitiesas proceeds of Inventory, instruments Equipment or insurances applicable thereto other Collateral or release otherwise shall be the obligor thereon. The Lender is authorized and empowered to accept the return property of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The LenderA. If Paragraph 2.A. or 2.E. above is checked, Bank conditionally authorizes Borrower to collect Accounts from Borrower's Account debtors provided, however, this privilege may be terminated by Bank at any time upon written notice from Bank and, upon mailing such notice, Bank shall have all of Borrower's rights, title, and interest in the Accounts, including a right of stoppage in transit. After notice as aforesaid or from time to time following upon the occurrence of an Event of Default which is a continuing Event (as subsequently defined), Bank may notify any Account debtor(s) of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the LenderBank's security interest in Borrower's Accounts and shall be entitled to collect same, and Borrower will thereafter receive all Accounts payments as the agent of and as trustee for Bank and will deliver to Bank on the day of receipt, all checks, cash, drafts, acceptances, notes and other Accounts payments and, until such delivery, Borrower shall not use or commingle any Accounts payments and shall at all customers times keep all such remittances separate and apart from Borrower's own funds, capable of identification as the Bank's property. After any default, Borrower shall open all mail only in the presence of a Bank representative, who may remove therefrom any Account remittance(s). Bank and its representatives are hereby authorized to endorse in Borrower's name, any item received by the Bank representing any payment on or any third party holding or otherwise concerned with proceeds of any of the AccountsCollateral, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the may sign Borrower's name any and upon all checksAccounts, drafts and invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments for the payment of money relating or documents in respect to the Accounts, and the proceeds therefrom, or property related thereto. Borrower hereby waives notice shall promptly give Bank copies of presentmentall Accounts statements, protest and non-payment of any instrument so endorsedaccompanied by such additional information, documents, or copies thereof, as Bank may request. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power shall maintain all records with respect to the Accounts: (a) Accounts and with respect to indorse the general conduct and operation of Borrower's name upon any notebusiness, acceptancesincluding balance sheets, checksoperating statements and other financial information, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized generally accepted accounting principles and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofas Bank may request.
Appears in 1 contract
Samples: Security Agreement (United American Healthcare Corp)
Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender Borrowers shall have the right to send notice collect all payments in respect of assignment their Accounts; provided, that, during the existence of a Default or notice an Event of Default, the Administrative Agent may, in its sole discretion, collect any such Accounts of the Lender's security interest to any Borrowers. Each Borrower shall, or shall cause, all payments on (including funds in PayPal and all customers or any third party holding or otherwise concerned with any of the AccountsStripe), and thereafter the Lender shall have the sole right proceeds of, its Accounts to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged delivered immediately to the Borrower's account and added to the Obligations. If the Lender is collecting the Administrative Agent by depositing all proceeds of such Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name into one or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee more lockbox accounts as the Borrower's attorney-in-fact with power Administrative Agent may specify, or via electronic deposit capture into a “blocked account” as specified by the Administrative Agent; provided that until Account Debtors make payments into such lockbox accounts (which, with respect to the Accounts: Account Debtors of HY Holdings shall be as soon as practicable after the Closing Date but no later than thirty (a30) days after the Closing Date (or such longer date as the Administrative Agent agrees in its reasonable discretion so long as the Borrowers have used commercially reasonable efforts to indorse cause their account debtors to make payments into lockbox accounts maintained with the Borrower's name upon any noteAdministrative Agent) (the “Transition Period”)), acceptancespayments on, checksand proceeds of, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any accounts receivable of the AccountsBorrowers shall be paid into lockbox accounts and deposit accounts over which the Administrative Agent has “control”. Unless an Event of Default has occurred and is continuing, drafts against customersany such amounts actually paid to or collected by the Administrative Agent pursuant to this Section 6.3(c) shall be transferred by the Administrative Agent to a depository account of the Borrowers maintained with the Administrative Agent on each Business Day and the Loan Parties shall have full and complete access to, assignments and verifications may direct the manner of Accounts disposition of, funds in such account. If Event of Default has occurred and notices is continuing, any such amounts actually paid to Customers; (cor collected by the Administrative Agent pursuant to this Section 6.3(c) to send verifications of Accounts to any customer; (d) to notify shall be applied by the Post Office authorities to change the address for delivery of mail addressed Administrative Agent to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any reduction of the Obligations remain unpaid. The Lender may, without notice to Loans or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any Cash Collateralization of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return Letters of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofCredit then outstanding.
Appears in 1 contract
Samples: Credit Agreement (Teladoc, Inc.)
Collection of Accounts. The LenderNot later than thirty (30) days after the Closing Date, or by such other Date as the Administrative Agent, in its reasonable discretion, may otherwise determine, Borrower shall, and shall cause each other Credit Party to, enter into and maintain agreements in form and substance reasonably satisfactory to Administrative Agent (the "BLOCKED ACCOUNT AGREEMENTS") with one or more Lenders or other financial institutions (each, a "Blocked Account Bank"), which agreements shall, among other things, provide for the establishment of a Collection Account maintained by the Disbursing Agent for the deposit of Collections (each, a "COLLECTION ACCOUNT") and a separate account for the disbursement of Collections and Loan proceeds (each, a "DISBURSEMENT ACCOUNT") for each Credit Party. Borrower shall, and shall cause each other Credit Party to, at all times maintain at least one Collection Account and at least one Disbursement Account with the Disbursing Agent, and shall, and shall cause each other Credit Party to (and in the event any time such Person fails to do so, the Administrative Agent may upon the occurrence and during the continuance of a Default, in the name of such Person or in its own name), instruct all account debtors on the Accounts of each Credit Party to remit all Collections to such Collection Accounts. All Collections and other amounts received by any Credit Party from time any account debtor, in addition to time following all other cash received from any other source, shall upon receipt be deposited into a Collection Account. The Disbursing Agent shall apply all funds on deposit in the Collection Accounts to the outstanding Obligations pursuant to Section 4.6(c) immediately upon the deposit thereof. Prior to the occurrence of a Default or an Event of Default which is a continuing Event of Default, all amounts in the Disbursement Accounts shall be made available to Borrower for Permitted Acquisitions, working capital and unless and until general corporate purposes or otherwise applied as set forth in Section 2.5. Except for the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all accounts identified in Section 4.7 of the rights contained herein to directly collect all Accounts. Upon such a termination Disclosure Schedule, without the prior written consent of the Borrower's authorityAdministrative Agent, Borrower shall not, and shall not permit any other Credit Party to, (i) open or maintain any lockbox with any Person other than the Lender shall have the right to send notice of assignment Disbursing Agent, or notice of the Lender's security interest to (ii) open or maintain any and all customers account with a bank or other financial institution (including a broker/dealer) or any third party holding other account where money is or otherwise concerned may be deposited or maintained with any of the AccountsPerson, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment a Collection Account or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofa Disbursement Account.
Appears in 1 contract
Collection of Accounts. The Lender or Lender, 's designee may at any time time, with or from time without notice to time following Borrower, subject to the occurrence second sentence of an Event this Section 2.5, (a) notify customers, Account debtors or other obligors of Default which is Borrower that the Accounts and other Collateral have been assigned to Lender and that Lender has a continuing Event of Defaultsecurity interest therein and (b) collect the Accounts and other Collateral directly and add the collection costs and expenses thereof to the Obligations; provided, and however, unless and until the same is cured (if Lender takes such action or gives Borrower has the right other written instructions, Borrower shall notify all Account debtors and other obligors of Borrower to cure such Event of Default hereunder) may terminate the Borrower's authority to collect remit payments on the Accounts and-may exercise any and other Collateral to a lockbox to be designated by Lender, or all in the case of the rights contained herein payments to directly collect all Accounts. Upon such a termination of the Borrower's authoritybe made by wire transfer, the ACH or other electronic means, to an account designated by Lender over which Lender shall have control. In the right to send notice of assignment event Lender or notice of the Lender's security interest designee provides notice to customers, Account debtors or other obligors of Borrower as provided for in this Section 2.5, Lender agrees that Lender will use its best efforts to notify Borrower of same within five (5) Business Days. All such payments remitted to the lockbox or made by wire transfer, ACH or other electronic means to the account designated by Lender shall then be credited to a deposit account of Lender into which remittances from Account debtors and other obligors of Borrower and obligors of other customers of Lender may be credited. If, notwithstanding any notices that may be sent to Account debtors or other obligors of Borrower, Borrower obtains payment on any Account or other Collateral, including, without limitation, collections under credit card sales, Borrower shall receive any and all customers or any third party holding or otherwise concerned such payments on Accounts and other Collateral and other proceeds (including cash) in trust for Lender and shall immediately deliver said payments to Lender in the original form as received, together with any necessary endorsements thereof, and/or at the discretion of the AccountsLender, shall deposit said payments into a deposit account designated by, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the name of and under the exclusive control of, Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. (a) Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are reasonably acceptable to Lender into which Borrower shall promptly deposit and direct its account debtors to directly remit all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral (other than proceeds from the sale of consigned goods held by Borrower that are due to the consignor of such goods pursuant to a written consignment agreement (a copy of which has been furnished to Lender) and with respect to which such consignor has filed appropriate financing statements) in the identical form in which such payments are made, whether by cash, check or other manner ("COLLECTIONS"). The banks at which the Blocked Accounts are established shall enter into an agreement, in form and substance reasonably satisfactory to Lender, at any time providing that all items received or deposited in the Blocked Accounts are pledged to Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following the occurrence of an Event of Default which is a continuing Event of Defaulton deposit therein and that, and unless and until the same is cured (if Borrower has the right subject to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authoritySection 6.3(d), the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding depository bank will wire, or otherwise concerned with any transfer, in immediately available funds, on a daily basis, all funds received or deposited into the Blocked Accounts to such bank account of Lender as Lender may from time to time designate for such purpose ("Payment Account"); PROVIDED Lender agrees that during such period as there is no unpaid balance owing under the AccountsRevolving Loans, and thereafter the Lender shall have the sole right will provide written notice to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the such depository banks that, until further written notice from Lender's collection expenses shall , they will not be charged required to transfer such funds to the Borrower's account and added Payment Account on a daily basis. Borrower agrees that, subject to the Obligations. If the Lender is collecting the Section 6.3(d), all payments made to such Blocked Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name , whether on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments as proceeds of Inventory or insurances applicable thereto other Collateral or release the obligor thereon. The Lender is authorized and empowered otherwise shall be pledged to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The Lender, at any time or from time to time following Bank hereby authorizes the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority Debtor to collect all Accounts from the Account Debtors. The Proceeds of Accounts and-may exercise so collected by the Debtor shall be received and held by the Debtor in trust for the Bank. Unless otherwise agreed by the Bank, but only in the event Debtor is in default under the Line of Credit Agreement, the Term Loan Agreement, this Agreement or any other loan agreement or all loan document with Bank, the Debtor shall deliver to the Bank within one day of the rights contained herein to directly collect receipt thereof by the Debtor all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Proceeds in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment form of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptancescash, checks, drafts, money orders notes and other remittances received in payment of or other evidences on account of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Debtor's Accounts. Such Proceeds shall be deposited in a special non-interest bearing bank account (the "Cash Collateral Account") maintained with the Bank over which the Bank alone shall have power of withdrawal. All Proceeds other than cash shall be deposited in precisely the form in which received, drafts against customersexcept for the addition thereto of the endorsement of the Debtor when necessary to permit collection of the items, assignments which endorsement the Debtor agrees to make. The Debtor will not commingle any such Proceeds with any of the Debtor's other funds or property but will hold them separate and verifications apart from any other funds or property and upon an express trust for the Bank until deposit thereof is made in the Cash Collateral Account. Periodically, at the Bank's discretion, the Bank will apply all or any part of the collected Proceeds of Accounts on deposit in the Cash Collateral Account to the payment in full or in part of such of the Liabilities and notices in such order as the Bank may elect. The authority hereby given to Customers; (c) the Debtor to send verifications collect the Proceeds of Accounts in trust for the Bank may be terminated by the Bank at any time. The Bank shall have the right at any time, acting if it so chooses in the Debtor's name, to collect the Debtor's Accounts itself, to sell, assign, compromise, discharge or extend the time for payment of any customer; (d) Account, to notify institute legal action for the Post Office authorities to change the address for delivery collection of mail addressed to the Borrower; (f) any Account, and to do all other acts and things necessary, proper, necessary or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreementincidental thereto. The power of attorney Debtor hereby granted, being coupled with an interest, is irrevocable while any of ratifies all that the Obligations remain unpaidBank shall do by virtue hereof. The Lender mayBank may at any time, without notice to or the Debtor, notify any Account Debtor that the Account payable by such Account Debtor has been assigned to the Bank and is to be paid directly to the Bank. At the Bank's request the Debtor shall so notify Account Debtors and shall indicate on all xxxxxxxx to Account Debtors that payments thereon are to be made to the Bank. Without the written consent from of the BorrowerBank, xxx upon or otherwise collectthe Debtor shall not compromise, discharge, extend the time of for payment of or compromise otherwise grant any indulgence or settle for cashallowance with respect to any Account. Notwithstanding anything in this paragraph to the contrary, credit or otherwise upon any termsthe rights of Bank under this paragraph shall arise only in the event Debtor is in default under the Line of Credit Agreement, any of the Accounts Term Loan Agreement or any securities, instruments other loan agreement or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofloan document with Bank.
Appears in 1 contract
Collection of Accounts. The Lender, Bank conditionally authorizes and permits Grantor to collect Accounts from debtors. This privilege may be terminated by the Bank at any time or upon written notice from time to time following the occurrence of an Event of Default which is a continuing Event of DefaultBank, and unless upon mailing such notice the Bank shall be entitled to and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or have all of the rights contained herein ownership, title, rights, securities and guarantees of Grantor in respect to directly collect all Accounts. Upon such a termination , and in respect to the property evidenced thereby, including the right of stoppage in transit, and the Borrower's authority, the Lender Bank shall have the right to send notice enforce the Grantor's rights against the account debtors and obligors. Thereafter Grantor will receive all payments on Account as agent of assignment or notice of and for the Lender's security interest to any Bank and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged will transmit to the Borrower's account and added to Bank, on the Obligations. If the Lender is collecting the Accounts as providedday of receipt thereof, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, original checks, drafts, money orders or acceptances, notes and other evidences evidence of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law received in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise on account of Accounts, including all cash moneys similarly received by Grantor. Until such delivery, Grantor shall keep all such remittances separate and apart from Grantor's own funds, capable of identification as the property of the Bank, and shall hold the same in trust for the Bank. All items or settle for cash, credit accounts which are delivered by Grantor to the Bank on account of partial or full payment or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower as proceeds of any of the terms Collateral shall be deposited to the credit of a deposit account (herein called the "Collateral Deposit Account") of Grantor with the Bank, as security for payment of the Obligations. Grantor shall have no right to withdraw any funds deposited in the Collateral Deposit Account. The Bank may from time to time, at its discretion, and conditions thereofshall upon request of Grantor made not more than once in a week, apply all or any of the then balance, representing collected funds in the Collateral Deposit Account, toward payment of the Obligations, whether or not then due, in such order of application as the Bank may determine, and the Bank may, from time to time, in its discretion, release all or any of such balance to Grantor. Grantor, if in default in the performance of any of the provisions of this Agreement, upon demand, will open all mail only in the presence of a representative of the Bank, who may take therefrom any remittance on Accounts in which the Bank shall have a security interest. The Bank or its representatives is authorized to endorse, in the name of Grantor, any item howsoever received by the Bank, representing any payment on or other proceeds of any of the Collateral, and may endorse or sign the name of Grantor to Accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to Accounts or the property covered thereby requested by the Bank. Grantor will promptly give the Bank copies of all Accounts, to be accompanied by such information and by such documents or copies thereof as the Bank may require. Grantor will maintain such records with respect to Accounts and the conduct and operation of its business as the Bank may request, and will furnish the Bank all information with respect to Accounts and the conduct and operation of its business, including balance sheets, operating statements and other financial information, as the Bank may request.
Appears in 1 contract
Samples: Security Agreement (Meritage Hospitality Group Inc)
Collection of Accounts. The Lender, at any time or from time (a) Prior to time following the occurrence of a Compliance Triggering Event or Event of Default, Borrowers shall retain control of their cash, including payments and proceeds of Collateral. Concurrently with this Agreement, Borrowers shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to Lender. Such Blocked Accounts may be Central Collection Deposit Accounts, and the term Blocked Accounts shall mean and include the Central Collection Deposit Accounts. Upon an Event of Default which is or a continuing Event of DefaultCompliance Triggering Event, and unless during any Availability Compliance Period (related to a Compliance Triggering Event), and until upon Lender's request, Borrowers shall promptly deposit into one or more Blocked Accounts and direct their account debtors to directly remit into such Blocked Accounts all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the same identical form in which such payments are made, whether by cash, check or other manner. Concurrently with this Agreement, Borrowers shall deliver, or cause to be delivered to Lender, a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is cured maintained which agreement shall provide that upon notice from Lender (if Borrower has the right to cure such which shall be given upon an Event of Default hereunder) may terminate or a Compliance Triggering Event and revoked promptly after the Borrower's authority related Availability Compliance Reinstatement Date), such bank will send funds on a daily basis to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any Payment Account and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power instruction with respect to such Blocked Account only from Lender. Promptly upon Lender's request, Borrowers shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrowers agree that after notice by Lender to the Accounts: (a) bank under the Deposit Account Control Agreement, all payments made to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 1 contract
Collection of Accounts. The Section 6.3(a) of the Loan Agreement is hereby amended by deleting the third and fourth sentences of such Section in their entirety and replacing them with the following: “Each Borrower and Guarantor agrees that all payments made to such Blocked Accounts upon the occurrence and during the continuance of a Cash Dominion Event (and at all times prior to the receipt by Agent of the Deposit Account Control Agreements referred to in the immediately preceding sentence) or other funds received and collected by Agent or any Lender, whether in respect of the Receivables, as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Agent and Lenders in respect of the Obligations and therefore shall constitute the property of Agent and Lenders to the extent of the then outstanding Obligations. Without limiting any other rights of Agent or Lenders hereunder or under any of the other Financing Agreements, Agent may, at its option at any time that a Cash Dominion Event shall have occurred and be continuing, instruct the depository banks at which any Blocked Account is maintained to transfer all available funds received or from time deposited into such Blocked Account to time following the occurrence of an Event of Default which is a continuing Event of DefaultAgent Payment Account; provided, and unless and that, until the same is cured (if Borrower has the right receipt by Agent, in form and substance satisfactory to cure such Event Agent, of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authorityDeposit Account Control Agreements by and among Xxxxx Fargo, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any Agent, Term B Loan Agent and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power each applicable Borrowing Base Party with respect to the Accounts: (a) Blocked Accounts of Borrowing Base Parties maintained at Xxxxx Fargo, duly authorized, executed and delivered by Agent, Term B Loan Agent and each applicable Borrowing Base Party, Agent shall instruct Xxxxx Fargo to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders continue to transfer all available funds received or other evidences of payment that may come deposited into the Lender's possession; (b) to sign the Borrower's name such Blocked Accounts on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed a daily basis to the Borrower; Agent Payment Account. With respect to the disbursement accounts (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall but not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Blocked Accounts or any securitiescollection accounts) of Borrowing Base Parties, instruments or insurances applicable thereto or release Agent will only instruct the obligor thereon. The Lender is authorized and empowered depository banks at which such disbursement accounts are maintained to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned transfer funds deposited into such disbursement accounts to the Lender, Agent Payment Account at any time that a Cash Dominion Event shall exist or have occurred and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofcontinuing.”
Appears in 1 contract
Collection of Accounts. The LenderUntil such privilege is revoked by Lender as provided below, at any time or from time to time following Guarantor may, in the ordinary course of its business, adjust, settle and collect all Accounts. Upon the occurrence of an Event of Default which is a continuing Default, Lender may revoke such privilege without prior notice to Guarantor. Guarantor does hereby irrevocably designate, make, constitute and appoint Lender (and all Persons designated by Lender) as Guarantor's true and lawful attorney-in-fact, upon the occurrence of an Event of Default, and unless and until the same is cured in Guarantor's or Lender's name, to: (if Borrower has the right to cure such Event i) demand payment of Default hereunderAccounts; (ii) may terminate the Borrower's authority to collect the enforce payment of Accounts and-may by legal proceedings or otherwise; (iii) exercise any or all of the Guarantor's rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power remedies with respect to the Accounts: proceedings brought to collect an Account; (aiv) to indorse the Borrowersell or assign any Account upon such terms, for such amount and at such time or times as Lender deems advisable; (v) settle, adjust, compromise, extend or renew an Account; (vi) discharge and release any Account; (vii) take control in any manner of any item of payment or proceeds thereof; (viii) prepare, file and sign Guarantor's name upon any note, acceptances, checks, drafts, money orders or other evidences items of payment that may come into or proceeds thereof and to deposit the same to Lender's possessionaccount on account of Guarantor's Liabilities; (bix) endorse Guarantor's name upon any chattel paper, documents, instrument, invoice, warehouse receipt, xxxx of lading, or similar document or agreement relating to any Account or any goods pertaining thereto; (x) sign the BorrowerGuarantor's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications verification of Accounts and notices thereof to CustomersAccount Debtors; and (cxi) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessarywhich are necessary in Lender's sole discretion, proper, or convenient to carry out the terms and conditions and purposes and intent of fulfill Guarantor's Obligations under this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Samples: Guaranty and Commercial Security Agreement (Superior Consultant Holdings Corp)
Collection of Accounts. The Lender or Lender, 's designee may at any time or from time to time following during the occurrence continuance of an Event of Default which is a continuing Event of Default, with or without notice to any Borrower, (a) notify customers, Account debtors or other obligors of Borrowers that the Accounts and other Collateral have been assigned to Lender and that Lender has a security interest therein and (b) collect the Accounts and other Collateral directly and add the collection costs and expenses thereof to the Obligations; provided, however, unless and until the same is cured (if Lender takes such action or gives a Borrower has the right other written instructions, each Borrower shall notify all Account debtors and other obligors of such Borrower to cure such Event of Default hereunder) may terminate the Borrower's authority to collect remit payments on the Accounts and-may exercise any and other Collateral to a lockbox to be designated by Lender, or all in the case of the rights contained herein payments to directly collect all Accounts. Upon such a termination of the Borrower's authoritybe made by wire transfer, the ACH or other electronic means, to an account designated by Lender over which Lender shall have control. Notwithstanding the right foregoing as to send notice any Account debtor (other than The Clorox Company) that has a Concentration Percentage of assignment or notice more than twenty percent (20%) as contemplated by the definition of Eligible Accounts, and if the Concentration Percentage of the Account debtor The Clorox Company, exceeds thirty percent (30%), said Account debtors may be notified of Lender's security interest in Accounts prior to the existence of an Event of Default. All such payments remitted to the lockbox or made by wire transfer, ACH or other electronic means to the account designated by Lender shall then be credited to a deposit account of Lender into which remittances from Account debtors and other obligors of each Borrower and obligors of other customers of Lender may be credited. If, notwithstanding any notices that may be sent to Account debtors or other obligors of a Borrower, any Borrower obtains payment on any Account or other Collateral, including, without limitation, collections under credit card sales, such Borrower shall receive any and all customers or any third party holding or otherwise concerned such payments on Accounts and other Collateral and other proceeds (including cash) in trust for Lender and shall promptly deliver said payments to Lender in the original form as received, together with any necessary endorsements thereof, and/or at the discretion of the AccountsLender, shall deposit said payments into a deposit account designated by, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the name of and under the exclusive control of, Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The LenderEach Borrower will cause all monies, checks, notes, drafts and other payments relating to or constituting proceeds of Accounts and of any other Collateral to be forwarded to the Agent at any time or from time to time following the Agent's Office on a daily basis for application in accordance with Section 8.1(b) below. From and after the occurrence of an Event of a Default which is a continuing or Event of Default, and unless and until at the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all request of the rights contained herein to directly collect Required Lenders, each Borrower will promptly cause all Accounts. Upon such a termination of the Borrower's authoritymonies, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accountschecks, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checksnotes, drafts and other instruments for the payment of money payments relating to or constituting proceeds of Accounts and of any other Collateral to be forwarded to a Lockbox, for deposit in a Controlled Account in accordance with the Accountsprocedures set out in the corresponding Control Agreement. In particular, each Borrower will in such a case: advise each Account Debtor on trade accounts receivable to address all remittances with respect to amounts payable on account thereof to a specified Lockbox, advise each other Account Debtor that makes payment to such Borrower by wire transfer, automated clearinghouse transfer or similar means to make payment directly to a Controlled Account, and stamp all invoices relating to trade accounts receivable with a legend satisfactory to the Agent indicating that payment is to be made to such Borrower hereby waives notice via a specified Lockbox. Each Borrower and the Agent shall cause all receipts to be delivered daily and all collected balances in Controlled Accounts to be transmitted daily by wire transfer, depository transfer check or other means in accordance with the procedures set forth in the corresponding Control Agreement, to the Agent at the Agent's Office: for application, on account of presentmentthe Secured Obligations, protest as provided in Sections 2.3(c), 12.2, and non-12.3, such credits to be entered as of the day they are received if they are received prior to 1:30 p.m. and to be conditioned upon final payment in cash or solvent credits of any instrument so endorsed. If the Lender is collecting items giving rise to them, and provided that, notwithstanding the Accountsentry of such credits on the day they are received, directly interest on the Secured Obligations shall be calculated as above providedif such credits had been received the Business Day next succeeding the Business Day on which such credits are actually received, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power and with respect to the Accounts: balance, so long as no Default or Event of Default has occurred and is continuing, for transfer by wire transfer or depository transfer check to a Disbursement Account. Any monies, checks, notes, drafts or other payments referred to in subsection (a) to indorse of this Section 8.1 which are received by or on behalf of a Borrower will be held in trust for the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments Agent and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed will be delivered to the Borrower; (f) Agent or a Clearing Bank, as promptly as possible, in the exact form received, together with any necessary endorsements for application by the Agent directly to do all other acts the Secured Obligations or, if applicable, for deposit in the Controlled Account maintained with a Clearing Bank and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law processing in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any the terms of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofcorresponding Control Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Collins Industries Inc)
Collection of Accounts. The LenderBuyer and Seller agree that Buyer shall collect all Accounts purchased as part of the Assets after Closing. To the extent Seller makes any collections on any of the Accounts after Closing, at Seller shall remit the proceeds of the collections to Buyer, weekly, on each Monday, for all amounts collected in the preceding week, together with a reconciliation report reflecting all amounts so collected and the remaining balances on the Accounts, commencing with the second full week after the Closing. Seller shall cooperate with Buyer in the collection of the Accounts in any time or from time reasonable manner that Buyer may request. Seller and T3 guarantee Buyer's collection within 90 days after the Closing Date of the face amount of the Accounts, LESS any reserve for bad debt and EXCLUSIVE OF any credits ("Account Credits") reflected on the listing of the Accounts to time be prepared as part of the Closing Balance Sheet pursuant to Section 3.3 (the "Guaranteed Amount"), on the following terms: To the occurrence of an Event of Default which is a continuing Event of Defaultextent Buyer collects less than the Guaranteed Amount on the Accounts within the said 90-day period, Seller and T3 shall pay the difference between the amount collected and the Guaranteed Amount to Buyer within five (5) days after Buyer's written request therefor to Seller and T3, and unless Buyer shall transfer the balances on the unpaid Accounts to Seller. If the Buyer shall fail to make a request to T3 and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all Seller for payment of the rights contained herein to directly collect all Accounts. Upon such a termination unpaid balance of the Borrower's authorityGuaranteed Amount within one hundred twenty (120) days after the Closing Date, the Lender obligation of T3 and Seller to guarantee collection of the Guaranteed Amount and pay Buyer therefor shall cease. Seller and T3 shall have the right at their cost, during Buyer's normal business hours and upon reasonable prior notice, to send notice of assignment or notice of the Lenderreview and audit Buyer's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession records of the Accounts and Records relating theretocollections on the Accounts after Closing in the event that Buyer makes demand for payment on the Guaranteed Amount. All To the extent that Buyer collects in excess of the Lender's collection expenses Guaranteed Amount within 90 days after the Closing Date, Buyer shall be charged pay the excess amount to Seller within fifteen (15) days after the Borrower's account and added to expiration of the Obligationssaid 90 day period. If the Lender is collecting the Accounts as provided, the Lender Buyer shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name further assume all liability for any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly Account Credits as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts Closing and shall indemnify Seller and T3 from and against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law same as provided in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofSection 13.2.
Appears in 1 contract
Samples: Agreement (T-3 Energy Services Inc)
Collection of Accounts. The Lender(a) Borrowers shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Agent may specify, with such banks as are acceptable to Agent into which Borrowers shall promptly deposit and direct their respective account debtors (including, in the case of Polar, account debtors in respect of Accounts settled through the Clearing Bank) to directly remit all payments on Receivables and all payments constituting proceeds of Inventory constituting Collateral or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Borrowers shall deliver, or cause to be delivered to Agent a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time and from time to time Agent may become the bank's customer with respect to any of the Blocked Accounts and promptly upon Agent's request, Borrowers shall execute and deliver such agreements and documents as Agent may require in connection therewith. In the case of Accounts, the payment of which is settled through CNS and/or CASS and the Clearing Bank, Polar shall cause CNS and/or CASS, as applicable, to enter into and continue effective an agreement in favor of and in form and substance satisfactory to Agent, providing for the automatic remittance directly to the Agent Payment Account (unless Agent otherwise instructs the Clearing Bank) of all credit balances available to Polar under the Clearinghouse Agreements on each scheduled or other settlement date in accordance with the terms hereof. Agent will only instruct the depository banks at which the Blocked Accounts are maintained to transfer all funds received or deposited into the Blocked Accounts to the Agent Payment Account and will only instruct the Clearing Bank to remit funds directly to the Agent Payment Account, at any time that either of the following events (each, a "Sweep Event") has occurred: (i) a Default or from time to time following the occurrence of an Event of Default shall exist or have occurred which is a continuing Event of Defaulthas not been waived by Agent in writing, or (ii) Excess Availability shall be less than $20,000,000. Each Borrower and unless Guarantor agrees that all payments made to such Agent Payment Account or other funds received and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise collected by Agent or any or all Lender, whether in respect of the rights contained herein to directly collect all Accounts. Upon such a termination Receivables, as proceeds of the Borrower's authority, the Lender shall have the right to send notice of assignment Inventory constituting Collateral or notice of the Lender's security interest to any and all customers or any third party holding other Collateral or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged treated as payments to the Borrower's account Agent and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Lenders in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice and therefore shall constitute the property of Agent and Lenders to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)
Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, (a) Secured Party hereby authorizes and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority permits Debtor to collect the Accounts and-from its debtors. This privilege may exercise be terminated by Secured Party at any or time after notice from Secured Party upon the occurrence and during the continuance of a Triggering Event under the Settlement and Restructuring Agreement (a "Notice of Default"), and Debtor shall execute, upon demand therefor, such assignments so as to vest in Secured Party full title to the Accounts (to the extent permitted under applicable law), and Secured Party thereupon shall be entitled to and have all of the rights contained herein ownership, title, rights, securities and guarantees of Debtor with respect thereto, and with respect to directly collect all Accounts. Upon such a termination the property evidenced thereby, including the right of stoppage in transit, and Secured Party may notify any debtor or debtors of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice assignments of the Lender's security interest Accounts and collect the same; thereafter, Debtor will receive all payments on the Accounts as agent of and for Secured Party and will transmit to any Secured Party, on the day of receipt thereof, all original checks, drafts, acceptances, notes and all customers other evidence of payment received in payment of or any third party holding or otherwise concerned with any on account of the Accounts, including all cash moneys similarly received by Debtor. Until such delivery, Debtor shall keep all such remittances separate and thereafter apart from Debtor's own funds, capable of identification as the Lender property of Secured Party, and shall have hold the sole right same in trust for Secured Party. After Notice of Default from the Secured Party, all items or amounts that are delivered by Debtor to collect the Receivables and take possession Secured Party on account of partial or full payment or otherwise as Proceeds of any of the Accounts and Records relating thereto. All Collateral shall be deposited in accordance with the terms of the Lender's collection expenses shall be charged Settlement and Restructuring Agreement. To the extent permitted by law, Secured Party or its representatives is hereby authorized to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as providedendorse, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name of Debtor, any item, howsoever received by Secured Party, representing any payment on or other proceeds of any of the Collateral, and may endorse or sign the name of Debtor to any accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to Accounts or the Borrower's name any and property covered thereby requested by Secured Party. Debtor shall promptly give Secured Party, upon demand, copies of all checks, drafts and other instruments for the payment of money relating to the Accounts, to be accompanied by such information and the Borrower hereby waives notice by such documents or copies thereof as Secured Party may reasonably require. After Notice of presentmentDefault from Secured Party, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power Debtor shall maintain such records with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices the conduct and operation of its business as Secured Party may reasonably request, and will furnish to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed Secured Party all information with respect to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the 9 Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower conduct and operation of any of the terms its business, including balance sheets, operating statements and conditions thereofother financial information, as Secured Party may reasonably request from time to time.
Appears in 1 contract
Samples: Security Agreement (Advocat Inc)
Collection of Accounts. The (a) Borrowers shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are reasonably acceptable to Lender into which Borrowers shall promptly deposit and direct their respective account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Each Borrower shall deliver, or cause to be delivered to Congress, as agent for itself and Lender, a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of DefaultCongress, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) as agent for itself Lender, may terminate the Borrowerbecome bank's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power customer with respect to the Accounts: (a) Blocked Accounts and promptly upon Lender's request, such Borrower shall execute and deliver such agreements or documents as Lender may reasonably require in connection therewith. Each Borrower agrees that all payments made to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders such Blocked Accounts or other evidences funds received and collected by Congress, whether in respect of payment that may come into the Receivables, as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Congress for itself and Lender in respect of the Obligations and therefore shall constitute the property of Lender to the extent of the then outstanding Obligations. Notwithstanding anything to the contrary contained herein, after the first anniversary of the date of this Agreement and Lender's possession; (b) to sign the Borrower's name on any invoice relating to any receipt of the Accountsaudited financial statements of Borrowers as required hereunder for the fiscal year ending December 31, drafts against customers2004, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee Borrowers shall not be liable required to remit to Congress or to deposit (or to direct their respective account debtors to directly remit) to the Blocked Accounts, or to segregate and hold in trust, payments on Receivables or payments constituting proceeds of Inventory, if so long as (i) the consolidated net income of Borrowers and their Subsidiaries, before provisions for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law taxes (determined in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interestGAAP), is irrevocable while not less than Four Million Dollars ($4,000,000) during the fiscal year ending December 31, 2004, (ii) no Default or Event of Default has occurred and is continuing, (iii) the average daily Excess Availability during each month ending on or after March 31, 2005, is not less than Seven Million Five Hundred Thousand Dollars ($7,500,000), (iv) the average daily Excess Availability during any week in any such month is not less than Six Million Dollars ($6,000,000), and (v) Congress has agreed to the foregoing in accordance with the terms of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofCongress Agreement.
Appears in 1 contract
Collection of Accounts. The LenderUntil such privilege is revoked by Lender as provided below, at any time or from time to time following Guarantor may, in the ordinary course of its business, adjust, settle and collect all Accounts. Upon the occurrence of an Event of Default which is a continuing Default, Lender may revoke such privilege without prior notice to Guarantor. Guarantor does hereby irrevocably designate, make, constitute and appoint Lender (and all Persons designated by Lender) as Guarantor's true and lawful attorney-in-fact, upon the occurrence of an Event of Default, and unless and until the same is cured in Guarantor's or Lender's name, to: (if Borrower has the right to cure such Event i) demand payment of Default hereunderAccounts; (ii) may terminate the Borrower's authority to collect the enforce payment of Accounts and-may by legal proceedings or otherwise; (iii) exercise any or all of the Guarantor's rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power remedies with respect to the Accounts: proceedings brought to collect an Account; (aiv) to indorse the Borrowersell or assign any Account upon such terms, for such amount and at such time or times as Lender deems advisable; (v) settle, adjust, compromise, extend or renew an Account; (vi) discharge and release any Account; (vii) take control in any manner of any item of payment or proceeds thereof; (viii) prepare, file and sign Guarantor's name upon any note, acceptances, checks, drafts, money orders or other evidences items of payment that may come into or proceeds thereof and to deposit the same to Lender's possessionaccount on account of Guarantor's Liabilities; (bix) endorse Guarantor's name upon any chattel paper, documents, instrument, invoice, warehouse receipt, bill of lading, or similar document or agreement relating to any Accoxxx or any goods pertaining thereto; (x) sign the BorrowerGuarantor's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications verification of Accounts and notices thereof to CustomersAccount Debtors; and (cxi) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessarywhich are necessary in Lender's sole discretion, proper, or convenient to carry out the terms and conditions and purposes and intent of fulfill Guarantor's Obligations under this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Samples: Guaranty and Commercial Security Agreement (Superior Consultant Holdings Corp)
Collection of Accounts. The Lender(a) Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Agent may specify, with such banks as are selected by Borrower and reasonably acceptable to Agent into which Borrower shall promptly deposit and direct all account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Borrower shall deliver, or cause to be delivered to Agent a Depository Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following Agent may become the occurrence bank's customer with respect to any of the Blocked Accounts and promptly upon Agent's request, Borrower shall execute and deliver such agreements and documents as Agent may require in connection therewith. Agent shall instruct the depository banks at which the Blocked Accounts are maintained to transfer the funds on deposit in the Blocked Accounts to such operating bank account of Borrower as Borrower may specify in writing to Agent until such time as Agent shall notify the depository bank otherwise. Without limiting any other rights or remedies of Agent or Lenders, Agent may, at its option, instruct the depository banks at which the Blocked Accounts are maintained to transfer all available funds received or deposited into the Blocked Accounts to the Agent Payment Account at any time that either: (i) an Event of Default which shall exist or have occurred and be continuing, or (ii) Excess Availability is a continuing Event of Defaultless than $20,000,000. AGENT SHALL SEND TO BORROWER A COPY OF ANY SUCH WRITTEN INSTRUCTION SENT BY AGENT TO THE DEPOSITORY BANK PROMPTLY THEREAFTER. IN THE EVENT THAT AT ANY TIME AFTER AGENT HAS INSTRUCTED SUCH DEPOSITORY BANKS TO TRANSFER SUCH FUNDS TO THE PAYMENT ACCOUNT, EACH OF THE CONDITIONS SET FORTH IN CLAUSES (i) AND (ii) ABOVE DO NOT EXIST OR HAVE NOT OCCURRED AND ARE NOT CONTINUING FOR A PERIOD OF THIRTY (30) CONSECUTIVE DAYS, UPON BORROWER'S WRITTEN REQUEST RECEIVED BY AGENT WITHIN FIVE (5) BUSINESS DAYS AFTER THE END OF SUCH THIRTY (30) DAY PERIOD, AGENT SHALL INSTRUCT SUCH DEPOSITORY BANKS TO TRANSFER THE FUNDS ON DEPOSIT IN SUCH ACCOUNTS TO SUCH OPERATING DEPOSIT ACCOUNT OF BORROWER AS BORROWER MAY SPECIFY IN WRITING TO AGENT UNTIL SUCH TIME AS AGENT IS ENTITLED TO NOTIFY AND SHALL NOTIFY THE DEPOSITORY BANK OTHERWISE AS PROVIDED ABOVE. Borrower agrees that all payments made to such Blocked Accounts or other funds received and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise collected by Agent or any or all Lender, whether in respect of the rights contained herein to directly collect all Accounts. Upon such a termination Receivables, as proceeds of the Borrower's authority, the Lender shall have the right to send notice of assignment Inventory or notice of the Lender's security interest to any and all customers or any third party holding other Collateral or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged treated as payments to the Borrower's account Agent and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver Lenders in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice and therefore shall constitute the property of Agent and Lenders to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofthen outstanding Obligations.
Appears in 1 contract
Collection of Accounts. The (a) Borrowers and Guarantors will promptly deposit and shall direct their respective account debtors to directly remit all payments of Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made into lockboxes and related accounts or other accounts in which Agent has a perfected security interest and that are subject to a duly executed and delivered Deposit Account Control Agreement (each a "Blocked Account"). Upon the occurrence and during the continuance of a Trigger Event, Agent may deliver a Control Notice to the depository bank at which the Blocked Account is maintained and Agent shall, at the request of Administrative Borrower Representative, rescind such Control Notice at such time that a Trigger Event does not exist for a period of not less than sixty (60) consecutive days. Each Borrower and Guarantor agrees that, from and after the date on which Agent shall have delivered a Control Notice to the depository bank(s) at which the Blocked Accounts are located and, until such time, if any, as such Control Notice is rescinded by Agent in accordance with the immediately preceding sentence, all payments made to such Blocked Accounts or other funds received and collected by Agent or any Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all whether in respect of the rights contained herein Receivables, as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to directly collect all Accounts. Upon such a termination Agent and Lenders in respect of the Borrower's authority, Obligations and therefore shall constitute the Lender shall have property of Agent and Lenders to the right to send notice of assignment or notice extent of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating theretothen outstanding Obligations. All of the Lender's collection expenses shall be charged Notwithstanding anything to the Borrower's account and added contrary contained herein, Agent agrees not to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power a Control Notice with respect to any Controlled Disbursement Account designated on Schedule 8.10 of the Accounts: Information Certificate or with respect to any other account which has been established by Borrowers solely to pay, or specifically designated to exclusively receive, any Trust Funds (aas defined below). As between Agent and Borrowers, on a monthly basis prior to a Trigger Event and on a weekly basis after and during the continuance of a Trigger Event, Borrowers shall send written notice to Agent of the type and amount of any Trust Funds contained or held in the Blocked Accounts which have been remitted to Agent (the "Designated Funds"), together with evidence reasonably satisfactory to Agent (i) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come Trust Funds have been deposited into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Blocked Accounts and notices to Customers; have actually been received by Agent (cthe "Designated Funds"), and (ii) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed as to the Borrower; (f) to do all other acts type and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts amount of such attorney or designee are hereby ratified and approvedTrust Funds. Upon receipt of such notice, and such attorney or designee shall not be liable for any acts Agent agrees, upon the written request of omission or commission other than acts of intentional wrongdoingBorrowers, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with to make an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice advance to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.Borrowers under
Appears in 1 contract
Samples: Loan and Security Agreement (International Wire Group Inc)
Collection of Accounts. The Lender, at any time or from time to time following the occurrence of an Event of Default which is a continuing Event of DefaultBorrower shall, and unless shall cause each of its Designated Restricted Subsidiaries to, maintain at all times a lockbox (individually, a "LOCKBOX" and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authoritycollectively, the Lender "LOCKBOXES") and shall have the right to send notice of assignment or notice of the Lender's security interest instructed all account debtors on its Accounts and all obligors with respect to any proceeds of Collateral to remit all Collections and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right such proceeds to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, such Lockboxes (and the Borrower hereby waives notice shall, and shall cause each of presentmentits Designated Restricted Subsidiaries to, protest use its best efforts to cause all account debtors and non-payment all obligors with respect to proceeds of any instrument so endorsedCollateral to remit Collections and such proceeds to such Lockboxes). If The Borrower, its Designated Restricted Subsidiaries, the Lender Agent and the financial institutions selected by the Borrower and acceptable to the Agent (the "LOCKBOX BANKS") shall enter into agreements substantially in the form of Exhibit I, or such other form as the Agent may approve (the "LOCKBOX AGREEMENTS"), which among other things shall provide for the opening of an account for the deposit of Collections and proceeds of Collateral (a "COLLECTION ACCOUNT") at a Lockbox Bank; provided, however, that from the date on which the Borrower or a Designated Restricted Subsidiary opens for business (whether through an Acquisition or otherwise) a new rental yard in an area not previously served by a rental yard of the Borrower or a Designated Restricted Subsidiary until the earlier of (i) the 120th day thereafter and (ii) the date a Lockbox for such new rental yard is collecting the Accounts, directly as above providedestablished, the Borrower hereby constitutes or such Designated Restricted Subsidiary may maintain accounts into which the Lender Borrower or such Designated Restricted Subsidiary deposits Collections and proceeds of Collateral for the Lender's designee new rental yard (individually, a "RESTRICTED ACCOUNT" and collectively, the "RESTRICTED ACCOUNTS") with the financial institutions selected by the Borrower and acceptable to the Agent (the "RESTRICTED ACCOUNT BANKS"), and, within 15 Business Days after the opening of any such Restricted Account, the Borrower or such Designated Restricted Subsidiary, as the Borrower's attorney-in-fact with power case may be, the Agent and such financial institutions shall enter into agreements with respect to the Accounts: respective Restricted Accounts substantially in the form of Exhibit J (a) the "RESTRICTED ACCOUNT AGREEMENTS"). All Collections and other amounts received or receivable by the Borrower or a Designated Restricted Subsidiary from any account debtor, in addition to indorse all other cash and proceeds of Collateral received from any other source, shall upon receipt be deposited into a Collection Account or a Restricted Account, as the case may be, of the Borrower or such Designated Restricted Subsidiary. Except with respect to the replacement of a Restricted Account Agreement with a Lockbox Agreement, termination or modification of such arrangements shall be subject to approval by the Agent. Upon the terms and subject to the conditions set forth in the Lockbox Agreements or the Restricted Account Agreements, as the case may be, all available amounts held in each Collection Account or Restricted Account, as the case may be, of the Borrower or a Designated Restricted Subsidiary shall be wired each Business Day into the Borrower's name concentration account maintained by the Agent with the Disbursement Bank (such concentration account or such other account as the Agent may approve in writing, the "CONCENTRATION ACCOUNT"). All amounts received in the Concentration Account from the Lockbox Banks or the Restricted Account Banks, in each case of the Borrower or a Designated Restricted Subsidiary, shall be credited to the account of such Borrower and applied and apportioned in accordance with Section 2.9. All Collections and other proceeds of Collateral which are received directly by the Borrower or a Designated Restricted Subsidiary shall be deemed to have been received by the Borrower or such Designated Restricted Subsidiary as the Agent's trustee and, upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating or such Designated Restricted Subsidiary's receipt thereof, such Person shall immediately transfer or cause to any of the be transferred, all such amounts into such Person's Collection Accounts (or, with respect to rental yards for which a Lockbox has not yet been established, into such Person's Restricted Accounts for those rental yards) in their original form, together with such endorsements thereon as are necessary or appropriate to permit their immediate deposit into such Collection Accounts or Restricted Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify as the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofcase may be.
Appears in 1 contract
Collection of Accounts. The Until the Lender has delivered an Account Collection Notice (as hereinafter defined) to the Borrowers (by means of a single notice to CheckFree), each of the Borrowers shall itself enforce and collect all amounts owing on the Accounts, for the Lender's benefit and on the Lender's behalf, but at the Borrowers' sole cost and expense. In connection with any Account Collection Notice, upon the request of the Lender, each of the Borrowers shall notify each of its account debtors and customers to make payment on its respective Account into a lock box account(s) at the Lender or at such other financial institution approved by the Lender. In the event, however, that any time of the Borrowers should receive at its offices any checks, drafts, money orders, or other items, cash or other media of payment ("Remittances") after the delivery by the Lender to CheckFree of an Account Collection Notice, such property shall be held by each of such Borrowers in trust for the Lender, separate from time to time following such Borrower's own property and funds in the original form received, and immediately (and, in any event, within two Business Days) deposited by such Borrower in lock box account(s) at the Lender, duly endorsed or assigned by such Borrower if required for the collection thereof. Upon (a) the occurrence of an Event of Default which that is a continuing Event of Defaultcontinuing, and unless and until (b) the same is cured delivery by the Lender to the Borrowers (if Borrower has the right by means of a single notice to cure such Event CheckFree) of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authoritywritten notice thereof, the Lender shall have may deliver a notice to the right Borrowers (by means of a single notice to send notice CheckFree) (an "Account Collection Notice") to require the collection of assignment or notice of the Accounts to be subject, in addition to the other provisions hereof, to the Lender's security interest to any current collateral monitoring and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofreporting procedures.
Appears in 1 contract
Collection of Accounts. The Lender or Lender, 's designee may at any time time, with or from time without notice to time following Borrower, (a) notify customers, Account debtors or other obligors of Borrower that the occurrence of an Event of Default which is Accounts and other Collateral have been assigned to Lender and that Lender has a continuing Event of Defaultsecurity interest therein and (b) collect the Accounts and other Collateral directly and add the collection costs and expenses thereof to the Obligations; provided, and however, unless and until the same is cured (if Lender takes such action or gives Borrower has the right other written instructions, Borrower shall notify all Account debtors and other obligors of Borrower to cure such Event of Default hereunder) may terminate the Borrower's authority to collect remit payments on the Accounts and-may exercise any and other Collateral to a lockbox to be designated by Lender, or all in the case of the rights contained herein payments to directly collect all Accounts. Upon such a termination of the Borrower's authoritybe made by wire transfer, the ACH or other electronic means, to an account designated by Lender over which Lender shall have control and with Borrower granting to Lender viewing access rights thereto. All such payments remitted to the right lockbox or made by wire transfer, ACH or other electronic means to send notice the account designated by Lender shall then be credited to a deposit account of assignment Lender into which remittances from Account debtors and other obligors of Borrower and obligors of other customers of Lender may be credited. If, notwithstanding any notices that may be sent to Account debtors or notice other obligors of the Lender's security interest to Borrower, Borrower obtains payment on any Account or other Collateral, including, without limitation, collections under credit card sales, Borrower shall receive any and all customers or any third party holding or otherwise concerned such payments on Accounts and other Collateral and other proceeds (including cash) in trust for Lender and shall immediately deliver said payments to Lender in the original form as received, together with any necessary endorsements thereof, and/or at the discretion of the AccountsLender, shall deposit said payments into a deposit account designated by, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the name of and under the exclusive control of, Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. Until the occurrence of an Event of Default, the Borrower, Xxxxx UK, NIM Holdings and its Subsidiaries shall at their own expense have the privilege for the account of, and in trust for, the Agent and the Lenders of collecting their Accounts and receiving in respect thereto all Items of Payment and shall otherwise completely service all of the Accounts including (a) the billing, posting and maintaining of complete records applicable thereto, (b) the taking of such action with respect to the Accounts as each of the Borrower, Xxxxx UK, NIM Holdings and each of the Subsidiaries may deem advisable; and (c) the granting, in the ordinary course of business, to any Account Debtor, of any lawful rebate, refund or adjustment, and may accept, in connection therewith, the return of goods, the sale or lease of which shall have given rise to an Account and may take such other actions relating to the settling of any Account Debtor's claim as may be commercially reasonable. The LenderAgent may, at its option, at any time or from time to time following after and during the occurrence continuance of an Event of Default which is a continuing Event of Defaulthereunder, and unless and until revoke the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged privilege given in this Agreement to the Borrower's account , Xxxxx UK, NIM Holdings and added the Subsidiaries by either giving notice of its assignment of, and Lien on the Collateral to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right Account Debtors or giving notice of such revocation to receive, indorse, assign and deliver in the Lender's name or the Borrower's name , Xxxxx UK and/or NIM Holdings. The Agent shall not have any and all checks, drafts and other instruments for the payment of money relating to the Accountsduty to, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon Xxxxx UK and NIM Holdings each hereby releases the Agent and the Lenders from all claims of loss or otherwise collect, extend damage caused by the time of payment of delay or compromise failure to collect or settle for cash, credit or otherwise upon any terms, enforce any of the Accounts or to preserve any securitiesrights against any other party with an interest in the Collateral, instruments unless due to the gross negligence or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return willful misconduct of the goods represented by Agent and/or any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofLenders.
Appears in 1 contract
Samples: Financing and Security Agreement (BPC Holding Corp)
Collection of Accounts. The Lender(a) Borrowers shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Agent may specify, with such banks as are reasonably acceptable to Agent into which Borrowers shall promptly deposit and direct their respective account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Each Borrower shall deliver, or cause to be delivered to Agent, a Deposit Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of DefaultAgent, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, itself and the Borrower hereby waives notice ratable benefit of presentmentLenders, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lendermay become bank's designee as the Borrower's attorney-in-fact with power customer with respect to the Accounts: (a) Blocked Accounts and promptly upon Agent's request, such Borrower shall execute and deliver such agreements or documents as Agent may reasonably require in connection therewith. Each Borrower agrees that all payments made to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Agent or any Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables, drafts against customers, assignments as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Agent and verifications Lenders in respect of Accounts the Obligations and notices to Customers; (c) to send verifications therefore shall constitute the property of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed Agent and Lenders to the Borrower; (f) extent of the then outstanding Obligations. Notwithstanding anything to do all other acts and things necessarythe contrary contained herein, proper, or convenient to carry out after the terms and conditions and purposes and intent first anniversary of the date of this Agreement. All acts Agreement and Agent's receipt of such attorney or designee are hereby ratified and approvedthe audited financial statements of Borrowers as required hereunder for the fiscal year ending December 31, and such attorney or designee 2004, Borrowers shall not be liable required to remit to Agent or to deposit (or to direct their respective account debtors to directly remit) to the Blocked Accounts, or to segregate and hold in trust, payments on Receivables or payments constituting proceeds of Inventory, so long as (i) the consolidated net income of Borrowers and their Subsidiaries, before provisions for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law taxes (determined in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interestGAAP), is irrevocable while not less than Four Million Dollars ($4,000,000) during the fiscal year ending December 31, 2004, (ii) no Default or Event of Default has occurred and is continuing, (iii) the average daily Excess Availability during each month ending on or after March 31, 2005, is not less than Seven Million Five Hundred Thousand Dollars ($7,500,000) and (iv) the average daily Excess Availability during any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or week in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall such month is not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofless than Six Million Dollars ($6,000,000).
Appears in 1 contract
Collection of Accounts. The Lender(a) On or before the Closing Date, the Borrowers and their Subsidiaries shall (i) direct all of their Account Debtors to make all payments on Accounts directly to one or more Lock Boxes or Controlled Accounts (except that the Agent and the Lenders acknowledge that payments made by patients at the time such patients receive goods and services at a facility of a Borrower would not be directed to be remitted to a Lock Box), (ii) establish Controlled Accounts with the Agent or such other financial institutions as shall be acceptable to the Agent, into which all payments received in the Lock Boxes shall be deposited, and into which the Borrowers will promptly deposit all payments made for inventory or services sold or rendered by the Borrowers and received by the Borrowers in the identical form in which such payments were made, whether by cash or check, and (iii) cause each Subsidiary and Affiliate, and any time other Person acting for or in concert with the Borrowers or their Subsidiaries that receives any monies, checks, notes, drafts or other payments relating to or as proceeds of Accounts or other Collateral, to promptly remit the same (or cause the same to be remitted) in hand to the Controlled Accounts; PROVIDED that, (x) for purposes of administrative convenience, the Agent may in its reasonable discretion, permit the Borrowers and their Subsidiaries from time to time following to maintain one or more accounts with one or more financial institutions other than the occurrence of an Event of Default which is a continuing Event of DefaultAgent and with such maximum cash balances as the Agent deems appropriate, and for which the Borrowers and their Subsidiaries may, at the discretion of the Agent, be permitted to have direct access, and (y) so long as no Revolving Credit Loans or Letters of Credit shall be outstanding, the Borrowers shall be permitted to have access to the funds in all Controlled Accounts unless and until such time as the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender Agent shall have notified the right financial institutions where Controlled Accounts are maintained that the Agent has elected to send notice of assignment or notice of revoke the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged Borrowers' access to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver funds in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the such Controlled Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The LenderBorrower shall have the privilege of collecting the Accounts in trust for CoastFed, at Borrower's sole cost and expense, which privilege may be revoked by CoastFed at any time. All monies, checks, notes, drafts, money orders, acceptances and other things of value and items of payment, together with any and all related vouchers, identifications, communications and other data, documents and instruments, collected or received by Borrower (or by any receiver, trustee, custodian or successor in interest of Borrower, or by any person acting on behalf of Borrower) in payment of, or in reference to, the Accounts shall belong to CoastFed, and, not later than one (1) day after receipt thereof by Borrower, Borrower shall deliver the same to CoastFed, at CoastFed's office (or, if so directed by CoastFed, Borrower shall deposit the same in CoastFed's account in a bank designated by CoastFed) in the original form in which the same are received, together with any necessary endorsements, including, without limitation, the indorsement of Borrower, all of which indorsements shall be with recourse. Borrower shall have no right, and agrees not to commingle any of the proceeds of any of the collections of the Accounts with Borrower's own funds and Borrower agrees not to use, divert or withhold any such proceeds. Borrower hereby divests itself of all dominion over the Accounts and the proceeds thereof and collections received thereon. Borrower shall make entries on its books and records in form satisfactory to CoastFed disclosing the absolute and unconditional assignment of all Accounts to CoastFed and CoastFed's security interest therein and shall keep a separate account on its record books of all collections received thereon. Borrower agrees that it will, upon request after an uncured Event of Default by CoastFed and in such form and at such times as CoastFed shall request, give notice to the Account Debtors of the assignment of and the grant of a security interest in the Accounts to CoastFed and that in the event of an uncured Event of Default CoastFed may itself give such notice at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the in CoastFed's or Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender mayname, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of requiring such Account Debtors to pay the Accounts directly to CoastFed, and in any such event, Borrower's privilege of collecting the Accounts shall automatically be revoked. CoastFed may also revoke Borrower's privilege of collecting the Accounts at any time by giving notice thereof to Borrower (orally or any securities, instruments or insurances applicable thereto or release the obligor thereonin writing). The Lender is authorized CoastFed may charge to Borrower's account all costs and empowered to accept the return of the goods represented expenses incurred by any of the CoastFed in collecting Accounts, including, without notice to or consent by the Borrowerlimitation, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does notpostage, by anything herein or in any assignment or otherwisetelephone and telegraph charges, assume any reasonable and applicable salaries of the Borrower's obligations under any contract or agreement assigned to the LenderCoastFed personnel, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofattorneys' fees.
Appears in 1 contract
Samples: Accounts Collateral Security Agreement (RSL Communications PLC)
Collection of Accounts. The (a) Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to Lender into which Borrower shall promptly deposit and direct its account debtors to directly remit all payments on Receivables that constitute Collateral and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. At Lender's option, Borrower shall deliver, or cause to be delivered to Lender, a Depository Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) Lender may terminate the Borrowerbecome bank's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power customer with respect to the Accounts: (a) Blocked Accounts and promptly upon Lender's request, Borrower shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrower shall cause all funds received or deposited into the Blocked Accounts to indorse be transferred each Business Day to the Borrower's name upon any note, acceptances, checks, drafts, money orders Lender Payment Account. Borrower agrees that all payments made to such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables that constitute Collateral, drafts against customers, assignments as proceeds of Inventory or other Collateral or otherwise shall be treated as payments to Lender in respect of the Obligations and verifications therefore shall constitute the property of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed Lender to the Borrower; extent of the then outstanding Obligations. Notwithstanding anything to the contrary contained in this Section 6.3(a), Lender agrees that, in the event Lender and Borrower are unable to agree with Reference Bank, within thirty (f30) days subsequent to do all other acts and things necessarythe date hereof, proper, or convenient to carry out regarding the terms and conditions of a new Depository Account Control Agreement with respect to Borrower's Blocked Accounts located at Reference Bank, to replace the existing blocked account agreement previously executed with respect to such Blocked Accounts among Reference Bank , Lender and Borrower, then Lender shall accept such existing blocked account agreement for purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance Section 6.3(a) with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice respect to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereofBlocked Accounts at Reference Bank.
Appears in 1 contract
Collection of Accounts. The (a) Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, with such banks as are acceptable to Lender into which Borrower shall promptly deposit and direct its account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Borrower shall deliver, or cause to be delivered to Lender, a Depository Account Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time or and from time to time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) Lender may terminate the Borrowerbecome bank's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power customer with respect to the Accounts: (a) Blocked Accounts and promptly upon Lender's request, Borrower shall execute and deliver such agreements or documents as Lender may require in connection therewith. Borrower shall cause all funds received or deposited into the Blocked Accounts to indorse be transferred each Business Day to the Borrower's name upon any note, acceptances, checks, drafts, money orders Lender Payment Account. Borrower agrees that all payments made to such Blocked Accounts or other evidences of payment that may come into the funds received and collected by Lender's possession; (b) to sign the Borrower's name on any invoice relating to any , whether in respect of the AccountsReceivables, drafts against customers, assignments and verifications as proceeds of Accounts and notices Inventory or other Collateral or otherwise shall be treated as payments to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Lender in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any respect of the Obligations remain unpaid. The and therefore shall constitute the property of Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any extent of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereonthen outstanding Obligations. The Lender is authorized and empowered to accept the return Borrower further agrees that within ninety (90) days of the goods represented by any closing of the Accountsthis loan facility, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunderBorrower will close an existing Blocked Account with another Lender. The Lender does not, by anything herein or in any assignment or otherwise, assume any Closing of the Borrower's obligations under any contract or agreement assigned to the Lendersuch existing Blocked Account shall constitute a condition subsequent, and the Lender shall not be responsible in any way for the performance by the Borrower failure to close such Blocked Account within ninety(90) days of any closing of the terms and conditions thereofthis loan facility will constitute an Event of Default.
Appears in 1 contract
Collection of Accounts. The (a Borrower shall establish and maintain, at its expense, blocked accounts or lockboxes and related blocked accounts (in either case, "Blocked Accounts"), as Lender may specify, and Lender may establish and maintain a bank account of Lender ("Payment Account") with such bank as is acceptable to Lender, into which Borrower shall, in accordance with Lender's instructions, promptly deposit and direct its account debtors that remit payments by electronic funds transfers to directly remit, all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, cheque or other manner. The banks at any time which the Blocked Accounts are established shall enter into an agreement, in form and substance satisfactory to Lender, providing that all items received or deposited in the Blocked Accounts are the property of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time on deposit therein and that the depository bank will wire, or otherwise transfer, in immediately available funds, on a daily basis, at such time as Lender shall direct, all funds received or deposited into the Blocked Accounts to the Payment Account or such other bank account of Lender as Lender may from time to time designate for such purpose. Lender shall instruct the depository banks at which the Blocked Accounts are maintained to transfer the funds on deposit in the Blocked Accounts to such operating bank account of Borrower as Borrower may specify in writing to Lender until such time as Lender shall notify the depository bank otherwise. Lender may instruct the depository banks at which the Blocked Accounts are maintained to transfer all funds received or deposited into the Blocked Accounts to the Payment Account at any time that any of the following the occurrence of shall occur or exist: (i) an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such or event which with notice or passage of time or both would constitute an Event of Default hereunderDefault, shall exist or have occurred, or (ii) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender Borrower shall have the right failed to send notice of assignment or notice of the Lender's security interest to deliver any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law Borrowing Base Certificate in accordance with this Agreement. The power of attorney hereby grantedthe terms hereof 27 when due hereunder or within two (2) Business Days thereafter, being coupled with an interestor (iii) upon Lender's good faith belief that any information contained in any Borrowing Base Certificate is incomplete, is irrevocable while inaccurate or misleading, or (iv) Combined Excess Availability shall at any time be less than US$5,000,000, or (v) the US Dollar Equivalent of the Obligations remain unpaid. The Lender mayaggregate outstanding principal amount of Loans and Letter of Credit Accommodations, without notice to or consent from plus the Borrower, xxx upon or otherwise collect, extend the time aggregate outstanding principal amount of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized "Loans" and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof."
Appears in 1 contract
Collection of Accounts. The Lender or Lender, 's designee may at any time or from time to time following during the occurrence existence of an Event of Default which is a continuing Event of Default, with or without notice to Borrower, (a) notify customers, Account debtors or other obligors of Borrower that the Accounts and other Collateral have been assigned to Lender and that Lender has a security interest therein and (b) collect the Accounts and other Collateral directly and add the collection costs and expenses thereof to the Obligations; provided, however, unless and until the same is cured (if Lender takes such action or gives Borrower has the right other written instructions, Borrower shall notify all Account debtors and other obligors of Borrower to cure such Event of Default hereunder) may terminate the Borrower's authority to collect remit payments on the Accounts and-may exercise any and other Collateral to a lockbox to be designated by Lender, or all in the case of the rights contained herein payments to directly collect all Accounts. Upon such a termination of the Borrower's authoritybe made by wire transfer, the ACH or other electronic means, to an account designated by Lender over which Lender shall have control. Notwithstanding the right foregoing, as to send notice any Account debtor that has Concentration Percentage of assignment more than twenty percent (20%) (or notice 25% aggregated across all Borrower entities) as contemplated by the definition of Eligible Accounts, and if the Concentration Percentage of any Account debtor exceeds twenty percent (20%) (or 25% aggregated across all Borrower entities), said Account debtor may be notified of Lender's security interest in Accounts prior to the existence of an Event of Default. All such payments remitted to the lockbox or made by wire transfer, ACH or other electronic means to the account designated by Lender shall then be credited to a deposit account of Lender into which remittances from Account debtors and other obligors of Borrower and obligors of other customers of Lender may be credited. If, notwithstanding any notices that may be sent to Account debtors or other obligors of Borrower, Borrower obtains payment on any Account or other Collateral, including, without limitation, collections under credit card sales, Borrower shall receive any and all customers or any third party holding or otherwise concerned such payments on Accounts and other Collateral and other proceeds (including cash) in trust for Lender and shall immediately deliver said payments to Lender in the original form as received, together with any necessary endorsements thereof, and/or at the discretion of the AccountsLender, shall deposit said payments into a deposit account designated by, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the name of and under the exclusive control of, Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The (a) Each Borrower shall establish and maintain, at its expense, a blocked account or lockboxes and related blocked accounts (in either case, each a "BLOCKED ACCOUNT" and collectively the "BLOCKED ACCOUNTS"), as Lender may specify, with such bank or banks as are acceptable to Lender into which such Borrower shall promptly, and any other Subsidiary of GLC may, deposit and direct its account debtors to directly remit all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Each bank at which a Blocked Account is established shall enter into an agreement, in form and substance satisfactory to Lender, at providing (unless otherwise agreed to by Lender) that all items received or deposited in such Blocked Account (other than the proceeds of accounts receivable or other property of any time Subsidiary of GLC that is not a Borrower or Obligor) are the Collateral of Lender, that the depository bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time following on deposit therein and that the occurrence depository bank will wire, or otherwise transfer, in immediately available funds, on a daily basis, all funds received or deposited into such Blocked Account to such bank account of an Event Lender as Lender may from time to time designate for such purpose (the "PAYMENT ACCOUNT"). Each Borrower agrees that all amounts deposited in the Blocked Accounts or other funds received and collected by Lender, whether as proceeds of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authorityInventory, the Lender shall have the right to send notice collection of assignment Accounts or notice of the Lender's security interest to any and all customers or any third party holding other Collateral or otherwise concerned with (other than the proceeds of accounts receivable or other property of any Subsidiary of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses GLC that is not a Borrower or Obligor) shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Collateral of Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender may, without notice to or consent from the Borrower, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, and the Lender shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
Appears in 1 contract
Collection of Accounts. The LenderFollowing the occurrence of an Event of Default (as hereinafter defined), Bank is authorized at any time or and from time to time to take all actions necessary to collect all or any part of the Accounts in its own name or in the name of Grantor. Upon request of Bank, Grantor shall execute and deliver to Bank (in addition to documents previously delivered to Bank) an assignment, in a form satisfactory to Bank, of all Grantor's right, title, and interest in and to each of the Accounts, and shall obtain an acknowledgment of assignment from any and all account debtors in a form satisfactory to Bank. Following the occurrence of an Event of Default, if the Accounts at any time include more than one Account of the same account debtor, Bank may apply the proceeds of any collection received from such account debtor toward the liquidation of any such Account as Bank may determine. Following the occurrence of an Event of Default, Bank may settle or adjust all disputes or claims directly with the account debtors with respect to any of the Accounts, and may compromise or extend the time of payment for any of the Accounts on such terms and conditions as Bank may determine without affecting the liability of Grantor under this Security Agreement or any other document evidencing or relating to the obligations. The costs of such collection and enforcement, including attorneys' fees and out-of-pocket expenses and all other expenses and liabilities resulting therefrom, shall be borne solely by Grantor and shall be immediately due and payable to Bank by Grantor. Bank shall not be liable for failure to collect or enforce any of the Accounts or for any act or omission on the part of Bank or its officers, agents, and employees, except willful misconduct. Until Bank exercises its right, Grantor is authorized to, and shall use, its best efforts to effect the prompt collection of the Accounts. This authorization may be terminated at any time following the occurrence of an Event of Default which is a continuing Event of Default, and unless and until the same is cured (if Borrower has the right to cure such Event of Default hereunder) may terminate the Borrower's authority to collect the Accounts and-may exercise any or all of the rights contained herein to directly collect all Accounts. Upon such a termination of the Borrower's authority, the Lender shall have the right to send notice of assignment or notice of the Lender's security interest to any and all customers or any third party holding or otherwise concerned with any of the Accounts, and thereafter the Lender shall have the sole right to collect the Receivables and take possession of the Accounts and Records relating thereto. All of the Lender's collection expenses shall be charged to the Borrower's account and added to the Obligations. If the Lender is collecting the Accounts as provided, the Lender shall have the right to receive, indorse, assign and deliver in the Lender's name or the Borrower's name any and all checks, drafts and other instruments for the payment of money relating to the Accounts, and the Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. If the Lender is collecting the Accounts, directly as above provided, the Borrower hereby constitutes the Lender or the Lender's designee as the Borrower's attorney-in-fact with power with respect to the Accounts: (a) to indorse the Borrower's name upon any note, acceptances, checks, drafts, money orders or other evidences of payment that may come into the Lender's possession; (b) to sign the Borrower's name on any invoice relating to any of the Accounts, drafts against customers, assignments and verifications of Accounts and notices to Customers; (c) to send verifications of Accounts to any customer; (d) to notify the Post Office authorities to change the address for delivery of mail addressed to the Borrower; (f) to do all other acts and things necessary, proper, or convenient to carry out the terms and conditions and purposes and intent of this Agreement. All acts of such attorney or designee are hereby ratified and approved, and such attorney or designee shall not be liable for any acts of omission or commission other than acts of intentional wrongdoing, nor for any error of judgment or mistake of fact of law in accordance with this Agreement. The power of attorney hereby granted, being coupled with an interest, is irrevocable while any of the Obligations remain unpaid. The Lender Bank may, without notice to or consent from the Borrowerat its election, xxx upon or otherwise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon notify any terms, account debtor on any of the Accounts or any securities, instruments or insurances applicable thereto or release the obligor thereon. The Lender is authorized and empowered to accept the return of the goods represented by any of the Accounts, without notice to or consent by the Borrower, all without discharging or in any way affecting the Borrower's liability hereunder. The Lender does not, by anything herein or in any assignment or otherwise, assume any of the Borrower's obligations under any contract or agreement assigned to the Lender, thereof and the Lender shall not be responsible in any way for the performance by the Borrower effect collection of any of the terms and conditions thereofAccounts directly from the account debtor obligated thereon.
Appears in 1 contract
Samples: Security Agreement (Palweb Corp)
