Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 3 contracts
Sources: Security Agreement (BOSTON OMAHA Corp), Security Agreement (BOSTON OMAHA Corp), Security Agreement (BOSTON OMAHA Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) unless otherwise agreed upon by the Security Agent, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Security Agent, all Chattel Paper Paper, Instruments (other than checks) in excess of $5 million individually and Instruments evidencing other evidence of Receivables in excess of $5 million individually (other than any delivered to the Lender Security Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Security Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which in the good faith judgment of such Grantor could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of the Receivables or a substantial portion thereof. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof or with the consent of Security Agent, after the occurrence and except as otherwise provided in subsection (v) below, following and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, thereof or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall use commercially reasonable efforts to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Security Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Security Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Security Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecurity Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Security Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderSecurity Agent if required, in a Deposit Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Security Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Security Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 3 contracts
Sources: Notes Pledge and Security Agreement (Altice USA, Inc.), Loans Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it It shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to the Lender Administrative Agent as provided herein), as well as the related Receivables Records, with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Administrative Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, it shall continue to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Administrative Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Administrative Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Administrative Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Administrative Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Administrative Agent and (2B) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the Concentration Account.
Appears in 3 contracts
Sources: Security Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense accurate and complete records not create or suffer to exist any Lien upon or with respect to any of the Receivables as are customarily maintained under similar circumstances by Collateral (except Permitted Liens), and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons of established reputation engaged in similar businesses; at any time claiming any interest therein;
(ii) it shall mark conspicuously (not produce, use or permit any Collateral to be used unlawfully or in a form and manner reasonably satisfactory to violation of any provision of this Agreement or in material violation of any applicable statute, regulation or ordinance or any policy of insurance covering the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; Collateral;
(iii) it shall perform in all material respects all of its obligations with respect except on or prior to the Receivables; (iv) other than in Closing Date pursuant to the ordinary course of business consistent with prudent business practices or as permitted by the Credit AgreementAcquisition, it shall not amendchange such Grantor's name, modifyidentity, terminate corporate structure (e.g., by merger, consolidation, change in corporate form or waive otherwise) sole place of business, type of organization or jurisdiction of organization or establish any provision trade names unless it shall have complied with the requirements of Section 5.1(j) of the Credit Agreement or otherwise notified Collateral Agent in writing by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with a supplement to Schedule 1 hereto, prior to any such change or establishment; and shall have, prior to any such change or establishment, taken all actions necessary or reasonably requested by Collateral Agent to maintain the continuous validity, perfection and the same or better priority of Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor obtaining knowledge thereof, it shall promptly notify Collateral Agent in writing of any Receivable in any manner which event that could reasonably be expected to have a Material Adverse Effect. Other than in Effect on (x) the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal value of the time of payment Collateral, (y) the ability of any Receivable, (2) compromise Grantor or settle any dispute, claim or legal proceeding with respect Collateral Agent to any Receivable for less than dispose of the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereofCollateral, or (4z) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence rights and during remedies of Collateral Agent in relation thereto, including, without limitation, the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection levy of any such Receivables legal process against the Collateral or any material portion thereof; and
(v) except for Permitted Sales and Permitted Liens, it shall not take or permit any action which could reasonably be expected to adjust, settle or compromise the amount or payment thereof, materially impair Collateral Agent's rights in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCollateral.
Appears in 3 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Medical Device Manufacturing, Inc.), Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain in addition to any rights under this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to Grantor, notify, or require Grantor to notify, the counterparty to make all payments under similar circumstances the Material Contracts directly to the Collateral Agent;
(2) such Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by Persons it relating in any way to any Material Contract;
(3) such Grantor shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided herein), with an appropriate reference Collateral Agent (to the fact that each extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the Lender has a security interest therein; intent of avoiding compliance with this Agreement, and an explanation of any actions being taken with respect thereto);
(iii4) it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(iv5) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not promptly and diligently exercise each material right (1except the right of termination) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender it may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors have under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Collateral Agent may deem necessary or payment of advisable; and
(6) such Grantor shall use its best efforts to keep in full force and effect any Receivable, Supporting Obligation or release wholly or partly Collateral Support relating to any Account Debtor or obligor thereof, or allow any credit or discount thereonMaterial Contract.
Appears in 3 contracts
Sources: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems Inc), Security Agreement (Viking Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable request, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreementand while no Event of Default exists, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business, after the occurrence business and during the continuation of an so long as no Event of DefaultDefault exists, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, Collateral Agent may: (1A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2B) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (C) enforce, at the Lenderexpense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit collateral account control agreement(the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 3 contracts
Sources: Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Collateral Receivables, including, but not limited to, the originals of all documentation with respect to all Collateral Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Collateral Receivables, all merchandise returned and all other dealings therewith;
(ii) unless otherwise agreed upon by the Security Agent, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Security Agent, all Chattel Paper included in the Collateral, Instruments (other than checks) in excess of $5 million individually included in the Collateral and Instruments evidencing other evidence of Collateral Receivables in excess of $5 million individually (other than any delivered to the Lender Security Agent as provided herein), as well as the Collateral Receivables Records with an appropriate reference to the fact that each of the Lender Security Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Collateral Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Collateral Receivable in any manner which in the good faith judgment of Grantor could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of the Collateral Receivables or a substantial portion thereof. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof or with the consent of the Security Agent, after the occurrence and except as otherwise provided in subsection (v) below, following and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Collateral Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Collateral Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, thereof or (4z) allow any credit or discount thereon. The Lender may ;
(av) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables except as otherwise provided in this subsection, Grantor shall use commercially reasonable efforts to make payment of collect all amounts due or to become due to such Grantor thereunder directly to under the Lender Collateral Receivables and (2) enforceany Supporting Obligation included in the Collateral and diligently exercise each material right it may have under any Collateral Receivable, any Supporting Obligation included in the Collateral or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, Grantor shall take such action as Grantor may deem necessary or advisable. Notwithstanding the expense of such Grantorforegoing, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in Security Agent shall have the same manner and to the same extent as such Grantor might have done and (b) right at any time after the occurrence and during the continuance of an Event of Default, Default to notify, or require Grantor to notify, any Account Debtor of the Security Agent’s security interest in the Collateral Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Security Agent may: (1) direct the Account Debtors under any Collateral Receivables to make payment of all amounts due or to become due to Grantor thereunder directly to the Security Agent; (2) notify, or require Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Collateral Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecurity Agent; and (3) enforce, at the expense of Grantor, collection of any such Collateral Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as Grantor might have done. If the Lender Security Agent notifies any Grantor that it has elected to collect the Collateral Receivables in accordance with the preceding sentence, any payments of Collateral Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderSecurity Agent if required, in a Deposit Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Security Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Collateral Receivables, any Supporting Obligation included in the Collateral or Collateral Support shall be received in trust for the benefit of the Lender Security Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Collateral Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation included in the Collateral or Collateral Support relating to any Collateral Receivable.
Appears in 2 contracts
Sources: Notes Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: that until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons in its reasonable business judgment and consistent with its past practice including, but not limited to, the originals of established reputation engaged in similar businesses; all documentation with respect to all such Receivables and records of all payments received and all credits granted on such Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of businessbusiness as generally conducted by it and, after the occurrence and except as otherwise provided in subsection (iii) below, during the continuation continuance of an Event of Default, such Grantor shall not (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon. The Lender ;
(iii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may (a) have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at any time following its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent (acting pursuant to the direction it receives under the Indenture), may deem necessary or advisable. Notwithstanding the foregoing, subject to the Intercreditor Agreement (if applicable), the Collateral Agent shall have the right at any time during the continuance of an Event of Default beyond all applicable to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following delivery by the Trustee to the Company of notice and cure periods of an Event of Default, the Collateral Agent may (1acting at the written direction of Holders owning a majority of the aggregate outstanding principal amount of the Notes), subject to the Intercreditor Agreement (if applicable) (A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2B) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (C) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Securities Account or Deposit Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iv) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Security Agreement (Oppenheimer Holdings Inc), Security Agreement (Oppenheimer Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants It is further agreed as follows:
Section 6.1. Conduct of Business by R&B and agrees that: FDC. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be permitted pursuant to this Agreement:
(a) R&B:
(i) it shall, and shall keep cause each of its Subsidiaries to, conduct its operations according to their ordinary and maintain at its own cost and expense accurate and complete records usual course of business in substantially the Receivables same manner as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; heretofore conducted;
(ii) it shall mark conspicuously use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organizations and goodwill (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (except that any of its Subsidiaries may be merged with or into, or be consolidated with any of its other than Subsidiaries or may be liquidated into R&B or any delivered to the Lender as provided hereinof its Subsidiaries), keep available the services of its current officers and other key employees and preserve its relationships with an appropriate reference to the fact that each of the Lender has a security interest therein; those persons having business dealings with R&B and its Subsidiaries;
(iii) it shall perform in all confer at such times as FDC may reasonably request with one or more representatives of FDC to report material respects all operational matters and the general status of its obligations with respect ongoing operations (to the Receivables; extent FDC reasonably requires such information);
(iv) shall notify FDC of any emergency or other than change in the normal course of its or its Subsidiaries, respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any governmental body or authority if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on R&B;
(v) shall not, and shall not (except in the ordinary course of business consistent with prudent business practices past practice) permit any of its Subsidiaries that is not wholly owned to, authorize or as pay any dividends on or make any distribution with respect to its outstanding shares of stock (other than Arcade Drilling AS ("Arcade") in accordance with and to the extent permitted by the Credit Facility Agreement, it dated as of February 21, 1991, as amended to date, between Arcade, Chase Investment Bank Limited, The Chase Manhattan Bank, N.A., and the other parties thereto);
(vi) shall not, and shall not amendpermit any of its Subsidiaries to, modifyexcept (i) in the ordinary course of business consistent with past practice or (ii) as otherwise provided in this Agreement, terminate enter into or waive amend any provision employment, severance or similar agreements or arrangements with any of their respective directors or executive officers or enter into, adopt or amend any bonus, deferred compensation, stock purchase, stock option, pension, retirement or other employee benefit plan, program, agreement or arrangement ("Plan") other than with respect to the previously authorized grants of options under the Devco Plan;
(vii) shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the R&B Merger and any mergers, consolidations or business combinations with R&B's Subsidiaries entered into in the ordinary course of business consistent with past practice), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any Receivable material contract rights, in any manner which could reasonably be expected to have a Material Adverse Effect. Other than each case not in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor ;
(viii) shall not propose or adopt any amendments to its corporate charter or by-laws;
(1ix) grant shall not, and shall not permit any extension of its Significant Subsidiaries to, issue or renewal authorize the issuance of, or agree to issue or sell any shares of the time of payment their capital stock of any Receivableclass (whether through the issuance or granting of options, (2) compromise warrants, commitments, subscriptions, rights to purchase or settle any disputeotherwise), claim or legal proceeding except as specifically set forth in Section 4.2 and the R&B Disclosure Schedule relating thereto and except with respect to the previously authorized grants of options under the Devco Plan;
(x) shall not, and shall not permit any Receivable for less of its Subsidiaries to, except in the ordinary course of business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, purchase or redeem any shares of its stock (other than the total unpaid balance thereofR&B Class A Stock) or any rights, warrants or options to acquire any such shares;
(3xi) releaseshall not, wholly and shall not permit any of its Subsidiaries to, take any actions which would, or partiallywould be reasonably likely to, any Person liable prevent accounting for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables Mergers in accordance with the preceding sentence, any payments pooling of Receivables received by such Grantor shall be promptly deposited by such Grantor in interests method of accounting under the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect requirements of Opinion No. 16 "Business Combinations" of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit Accounting Principles Board of the Lender hereunder and shall be segregated from other funds American Institute of such Grantor and such Grantor shall not adjustCertified Public Accountants, settle or compromise as amended by applicable pronouncements by the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Financial Accounting Standards Board ("APB No. 16");
Appears in 2 contracts
Sources: Merger Agreement (Falcon Drilling Co Inc), Merger Agreement (Falcon Drilling Co Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii2) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv3) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (5) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(4) it shall m▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Secured Party, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Secured Party as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Secured Party has a security interest therein;
(5) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Secured Party may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Secured Party shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Secured Party’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Secured Party may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Secured Party; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecured Party; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Secured Party notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderSecured Party if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Secured Party, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Secured Party hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(6) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Xfit Brands, Inc.), Pledge and Security Agreement (Xfit Brands, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent (or its agent or designee) as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; , except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Revolving Credit Pledge and Security Agreement, Revolving Credit Pledge and Security Agreement (NewPage CORP)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall mark conspicuously deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor or the Collateral Agent may deem necessary or advisable;
(vi) it shall use its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract; and
(vii) each Grantor shall, settle within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the date hereof, request in writing the consent of the counterparty or compromise counterparties to the amount Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or payment applicable law to the assignment or granting of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereona security interest in such Non-Assignable Contract to Secured Party and use its reasonable best efforts to obtain such consent as soon as practicable thereafter.
Appears in 2 contracts
Sources: Second Lien Credit and Guaranty Agreement (X Rite Inc), First Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees that: with the Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) it shall keep when the Registration Statement has become effective and maintain at its own cost the time and expense accurate date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein)Act, with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to the Underwriter, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to the Underwriter, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as the Underwriter may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Underwriter be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Underwriter and counsel for Underwriter and obtain the Underwriter’s consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Common Stock that would constitute an Issuer Free Writing Prospectus without the Underwriter’s prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to the Underwriter, without charge, in such quantities as the Underwriter has requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as the Underwriter may reasonably request for the distribution of the Shares, the Company will deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by the Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to the Underwriter, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise the Underwriter promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the period ending five years from the date hereof, the Company will furnish to the Underwriter (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the NASDAQ Global Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as the Underwriter may reasonably request.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof) or if this Agreement shall be terminated by the Underwriter because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of its obligations the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by the Underwriter) reasonably incurred by the Underwriter in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or would reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, equity-based compensation plans or other employee compensation plans existing on the date hereof (including future grants of restricted stock) or pursuant to currently outstanding options, warrants or rights), or sell or grant options, restricted stock, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, equity-based compensation plans or other employee compensation plans existing on the date hereof (including future grants of restricted stock)), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision registration of any Receivable in shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal other securities of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereofCompany, or (4) allow publicly disclose the intention to do any credit of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and stockholder of the Company set forth on Schedule II hereto to furnish to the Underwriter, prior to the Closing Date, a letter or discount thereon. The Lender may letters, substantially in the form of Exhibit A hereto (a) at any time following the occurrence and during “Lock-Up Agreements”); notwithstanding the continuance of an Event of Default beyond all applicable notice and cure periods foregoing, if (1) direct during the Account Debtors under any Receivables to make payment last 17 days of all amounts due the Lock-Up Period, the Company issues an earnings release or to become due to such Grantor thereunder directly announces material news or a material event relating to the Lender and Company occurs or (2) enforceprior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to the Underwriter, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are traded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the expense jurisdiction of such Grantor, collection its incorporation or the rules of any such Receivables national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and to adjust, settle or compromise the amount or payment thereof, in rules may be the same manner and to entity as the same extent as such Grantor might have done and (btransfer agent) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCommon Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Guaranty Federal Bancshares Inc), Underwriting Agreement (Guaranty Federal Bancshares Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain in addition to any rights under the Section of this Agreement relating to Receivables, the Secured Party may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Secured Party therein. In addition, after the occurrence and during the continuance of an Event of Default, the Secured Party may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances the Material Contracts directly to the Secured Party;
(2) each Grantor shall deliver promptly to the Secured Party a copy of each material demand, notice or document received by Persons it relating in any way to any Material Contract;
(3) each Grantor shall deliver promptly to the Secured Party, and in any event within ten (10) Business Days, after (1) any Material Contract of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided herein), with an appropriate reference Secured Party (to the fact that each extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the Lender has a security interest therein; intent of avoiding compliance with this Agreement, and an explanation of any actions being taken with respect thereto;
(iii4) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(iv5) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor or the Secured Party may deem necessary or advisable;
(6) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract; and
(7) with respect to any Non-assignable Contract that is a Material Contract, settle each Grantor shall, unless the relevant restrictions on transfer are overridden by Section 9-406 of the UCC, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or compromise counterparties to the amount Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or payment applicable law to the assignment or granting of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereona security interest in such Non-Assignable Contract to the Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Xfit Brands, Inc.), Pledge and Security Agreement (Xfit Brands, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, subject to the terms of the Credit Agreement, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right to enforce collection (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary;
(iv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract;
(v) upon the request of the Collateral Agent, each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its commercially reasonable efforts to obtain such consent; and
(vi) it shall hereafter use commercially reasonable efforts so as not adjust, settle or compromise to permit the amount or payment inclusion in any Material Contract to which it hereafter becomes a party of any Receivableprovision that could materially impair or prevent the creation of a security interest in, or release wholly or partly any Account Debtor or obligor thereofthe assignment of, or allow any credit or discount thereonsuch Grantor’s rights and interests in such Material Contract.
Appears in 2 contracts
Sources: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc), Revolving Credit Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it such Grantor shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii2) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv3) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it such Grantor shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of businessbusiness as generally conducted by such Grantor on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (5) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable in an amount in excess of One Hundred Thousand Dollars ($100,000) for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(4) at the reasonable request of the Collateral Agent, such Grantor shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(5) except as otherwise provided in this subsection, such Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) and subject to Section 8 below, enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit into an account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(6) such Grantor shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; , except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Revolving Credit Pledge and Security Agreement (NewPage Holding CORP), Revolving Credit Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) To the extent reasonably practicable, it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing Receivables other evidence of any Accounts (other than any delivered to the Lender Administrative Agent as provided herein), as well as the related Records, with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Administrative Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any ReceivableAccount, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, it shall continue to collect all amounts due or to become due to it under all Accounts and any Supporting Obligations relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Administrative Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing and in addition to all other rights and remedies, the Administrative Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such Grantor to notify, any Account Debtor with respect to any such Account or Supporting Obligation of the Administrative Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Administrative Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Administrative Agent and (2B) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Account or Supporting Obligation in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary endorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon. Each Grantor shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation relating to any Account.
Appears in 2 contracts
Sources: Credit Agreement (Titan Machinery Inc.), Security Agreement (Titan Machinery Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon. The Lender may ; and
(aii) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables except as otherwise provided in this subsection, each Grantor shall use its commercially reasonable efforts to make payment of collect all amounts due or to become due to such Grantor thereunder directly under any Receivable and to the Lender and (2) enforceexercise each material right it may have under any Receivable, in each case, at its own expense. If so required by the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such any Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Securities Account or Deposit Account that is subject to a deposit account maintained under the control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, ; or allow any credit or discount thereon.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Education Management Corporation), Pledge and Security Agreement (AID Restaurant, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other material dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records, with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection (v), each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit an account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: First Lien Pledge and Security Agreement (Arizona Chemical Ltd.), Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as to itself and its property only that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; accordance with its customary practice.
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than ;
(iii) after the occurrence and during the continuance of an Event of Default, the Collateral Trustee shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Trustee’s security interest in the ordinary course of businessReceivables and any Supporting Obligation and, after in addition, at any time following the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Collateral Trustee; and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Trustee if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iv) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Houghton Mifflin Co), Pledge and Security Agreement (Houghton Mifflin Co)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may, upon notice to the Grantor or Company Representative on behalf of Grantors, at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall mark conspicuously deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor or the Collateral Agent may deem necessary or advisable;
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract; and
(vii) each Grantor shall, settle within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Restatement Date, request in writing the consent of the counterparty or compromise counterparties to the amount Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or payment applicable law to the assignment or granting of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereona security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain in addition to any rights under this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances the Material Contracts directly to the Collateral Agent;
(2) such Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by Persons it relating in any way to any Material Contract;
(3) such Grantor shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided herein), with an appropriate reference Collateral Agent (to the fact that each extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the Lender has a security interest therein; intent of avoiding compliance with this Agreement, and an explanation of any actions being taken with respect thereto);
(iii4) it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(iv5) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not promptly and diligently exercise each material right (1except the right of termination) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender it may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors have under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary or compromise the amount advisable; and
(6) such Grantor shall use its best efforts to keep in full force and effect any Supporting Obligation or payment of Collateral Support relating to any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonMaterial Contract.
Appears in 2 contracts
Sources: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any other rights under this Agreement or the other Loan Documents, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Agreement of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Agreements directly to the Collateral Agent;
(ii) it each Grantor shall mark conspicuously deliver promptly to the Collateral Agent a copy of each material demand, notice or document received relating in any way to any Material Agreement;
(iii) each Grantor shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Agreement of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Agreement is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as Collateral Agent (to the extent such delivery is permitted by the terms of any such Material Agreement, provided hereinno prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that respect thereto;
(iv) each of the Lender has a security interest therein; (iii) it Grantor shall perform in all material respects all of its obligations with respect to the Receivables; Material Agreements;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such each Grantor shall not promptly and diligently exercise each material right (1except the right of termination) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender it may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors have under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Agreement, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor or the Collateral Agent may deem necessary or advisable;
(vi) each Grantor shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Agreement;
(vii) if requested by the Collateral Agent, settle each Grantor shall, within thirty (30) days of the date of such request, with respect to any Non-Assignable Contract, request in writing the consent of the counterparty or compromise counterparties to the amount Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or payment applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Collateral Agent and use its best efforts to obtain such consent as soon as practicable thereafter;
(viii) each Grantor shall use its best efforts to prohibit anti-assignment provisions in any Receivable, Material Agreements on a going-forward basis; and
(ix) no Grantor shall enter into any Intellectual Property License which prevents the exercise of remedies by the Collateral Agent with respect to any Inventory or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonEquipment covered by such Intellectual Property License.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep After the occurrence and maintain during the continuance of an Event of Default, in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein and may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) it each Grantor shall mark conspicuously deliver promptly to the Collateral Agent notice of any Material Contract as required pursuant to Section 5.1 of the Credit Agreement;
(iii) each Grantor shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts except to the extent contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to promptly and diligently exercise each material right it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract, except where, in its business judgment, it concludes that loss or relinquishment will not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonhave a Material Adverse Effect.
Appears in 2 contracts
Sources: Revolving Credit Pledge and Security Agreement (NewPage Holding CORP), Revolving Credit Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it each Grantor shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it each Grantor shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it each Grantor shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than except as otherwise consented to by the Administrative Agent at its sole option, with respect to each Receivable that is included in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it Borrowing Base: (A) no Grantor shall not amend, modify, terminate or waive any provision of any such Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other Effect on the value of such Receivable as Collateral; and (B) other than in the ordinary course Ordinary Course of businessBusiness as generally conducted by Borrowers on and prior to the date hereof, after the occurrence and during the continuation of an Event of Defaultexcept as otherwise provided in subsection (v) below, such no Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any such Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereofof any such Receivable, or (4) allow any credit or discount thereonon any such Receivable;
(v) except as otherwise provided in this subsection or as consented to by the Administrative Agent at its sole option, each Grantor shall continue to collect all amounts due or to become due to such Grantor under each Receivable that is included in the Borrowing Base and any Supporting Obligation and diligently exercise each material right it may have under any such Receivable or any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Administrative Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such any Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of Grantors, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such any Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such each Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) each Grantor shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Covenants and Agreements. Each Grantor hereby of the Company and the Trustee, on behalf of the Trust, covenants and agrees that: with the several Underwriters as follows:
(a) The Trust will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) it shall keep when the Registration Statement has become effective and maintain at its own cost the time and expense accurate date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein)Act, with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) below, of any change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Trust, or of any event that comes to the attention of the Trust that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Trust will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Trust will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Trust will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Trust will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company, the Trust or the Representative, be required by the Act or requested by the Commission.
(d) The Trust will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission.
(e) Neither the Company nor the Trust will make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company and the Trust will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Trust has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Trust consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Trust.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Units, the Trust will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Trust consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company, the Trust or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Trust will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except Section 11), or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of its obligations the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representative and the other Underwriters, other than defaulting Underwriters, for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(j) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (i) offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) (collectively, a “Disposition”) any Trust Units (as defined in Section 6(a)(vii) below), other securities of the Trust, other securities that are derived from the Subject Interests (as defined in the conveyances and assignments filed as exhibits to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2010 (the “Conveyances”), that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”); (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the Receivables; registration of any Trust Securities or (iv) other than publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and the Company will procure from each individual set forth on Schedule IV hereto and deliver to the Representative, prior to the Closing Date, a letter or letters substantially in the ordinary course form of business consistent with prudent business practices Exhibit G hereto (the “Lock Up Agreements”); notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or as permitted announces material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5(j) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing. The foregoing restrictions shall not apply to Dispositions of up to 116,010 Common Units by the Credit AgreementCompany to its certain eligible employees as incentive compensation, it shall not amendas described in the Registration Statement, modify, terminate or waive any provision Time of Sale Information and Prospectus.
(k) The Trust will comply with all provisions of any Receivable undertakings contained in the Registration Statement.
(l) Neither the Company nor the Trust will at any manner time, directly or indirectly, take any action designed, or which could might reasonably be expected to have cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(m) The Trust will file promptly all material required to be filed by it with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act or the rules and regulations of the Commission thereunder, subsequent to the date of the Prospectus and for so long as the delivery of a Material Adverse Effect. Other than prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering of the Units.
(n) The Company and the Trust will comply with all agreements and satisfy all conditions on their part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and the Company and the Trust will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company or the Trust in the ordinary course certificates contemplated by Section 9 hereof would be inaccurate if made as of businessthe Closing Date or the Additional Closing Date, as the case may be.
(o) The Company and the Trust will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall either the Company or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Company or the Trust shall so advise you promptly in writing. The Trust will use its reasonable best efforts to qualify or register the Trust Units for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will use its reasonable best efforts to cause the Trust to comply with such Blue Sky laws and to continue such qualifications, registrations and exemptions in effect for a period of five years after the occurrence date hereof.
(p) The Trust will timely file with the New York Stock Exchange (the “NYSE”) all documents and notices required by the NYSE of trusts that have securities that are traded on the NYSE.
(q) The Trust will make generally available to holders of the Trust Units a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(r) The Trust will furnish to holders of the Trust Units as soon as practicable after the end of each fiscal year an annual report (including financial statements of the Trust certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to holders of the Trust Units summary financial information of the Trust for such quarter in reasonable detail. For purposes of this Section 5(r), the Trust shall be deemed to have made available such summary financial information if such information has been filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
(s) The Trust, during the continuation of an Event of Defaultperiod ending three years from the date hereof, such Grantor shall not (1) grant any extension or renewal will furnish to you and, upon your request, to each of the time of payment of any Receivableother Underwriters, (2i) compromise as soon as available, a copy of each proxy statement, quarterly or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox annual report or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect report of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Tru
Appears in 2 contracts
Sources: Underwriting Agreement (ECA Marcellus Trust I), Underwriting Agreement (ECA Marcellus Trust I)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) At the reasonable request of the Collateral Agent, it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments (other than checks received in the ordinary course of business) and Instruments evidencing other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Lender Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Collateral Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, it shall continue to use its best efforts to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following upon the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Collateral Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Collateral Agent and (2B) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Covenants and Agreements. Each Grantor Pledgor hereby covenants and agrees that: :
(ia) it shall keep and maintain at its own cost and expense accurate and complete records of except for the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted created by the Credit this Agreement, it shall not amendcreate or suffer to exist any Lien upon or with respect to any of the Collateral other than Permitted Encumbrances, modifyand Pledgor shall defend the Collateral against all Persons at any time claiming any interest therein;
(b) it shall not change its name, identity, corporate structure (e.g., by merger, amalgamation, consolidation, change in corporate form or otherwise), principal place of business, chief executive office, registered office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (x) notified the Agent in writing within at least ten (10) days of any such change or establishment, identifying such new proposed name, identity, corporate structure, principal place of business, chief executive office, registered office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Agent may reasonably request and (y) taken all actions necessary and advisable to maintain the continuous validity, perfection and the same priority of the Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(c) it shall not take or permit any action which could impair the Agent’s rights in the Collateral, other than to the extent not prohibited under the Credit Agreement;
(d) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral, other than to the extent not prohibited under the Credit Agreement;
(e) in the event it acquires rights in any Collateral after the date hereof, it is understood and agreed that the security interest of the Agent shall attach to all Collateral immediately upon Pledgor’s acquisition of rights therein;
(f) [reserved];
(g) except as otherwise permitted by the Credit Agreement (without the prior written consent of the Agent), Pledgor will not terminate or waive agree to terminate any provision of its Organization Documents or make any Receivable in amendment or modification to any manner of its Organization Documents which could reasonably be expected to may have a Material Adverse Effect. Other than ;
(h) it shall comply with all of its obligations under or in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal respect of the time Collateral and shall enforce all of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding its rights with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Collateral; and
Appears in 2 contracts
Sources: Pledge Agreement, Pledge Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of Material Receivables, including, but not limited to, the Receivables as are customarily maintained under similar circumstances by Persons originals of established reputation engaged in similar businesses; all material documentation with respect thereto and records of all payments received and all credits granted thereon, all material merchandise returned and all material other dealings therewith;
(ii) during the continuance of an Event of Default, it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein)▇▇▇▇ conspicuously, with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; , all Chattel Paper, Instruments and other evidence of Material Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Material Receivables Records;
(iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Material Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreementand while no Event of Default exists, it shall not amend, modify, terminate or waive any provision of any Material Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business, after the occurrence business and during the continuation of an so long as no Event of DefaultDefault exists, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Material Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any material credit or discount thereon;
(v) each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Material Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Material Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may Notwithstanding the foregoing, Collateral Agent (aacting at the written direction of Majority Holders) shall have the right at any time during the existence of an Event of Default and, following notice to Grantors, to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, pursuant to the Note Documents Collateral Agent (1acting at the written direction of Majority Holders) may: (A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2B) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (C) enforce, at the Lenderexpense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit collateral account control agreement(the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Akoustis Technologies, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i1) it such Grantor shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii2) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv3) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it such Grantor shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by such Grantor on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (5) below, following an Event of Default, such Grantor shall not not, without the prior written consent of the Collateral Agent (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable in an amount in excess of One Hundred Thousand Dollars ($100,000) for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(4) at the reasonable request of the Collateral Agent, such Grantor shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(5) except as otherwise provided in this subsection, such Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) and subject to Section 8 below, enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit into an account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(6) such Grantor shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep After the occurrence and maintain during the continuance of an Event of Default, in addition to any rights under the Section of this Agreement relating to Receivables, the Priority Lien Collateral Trustee may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Priority Lien Collateral Trustee therein and may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Priority Lien Collateral Trustee;
(ii) each Grantor shall deliver promptly to the Priority Lien Collateral Trustee a copy of each material demand or notice received by it relating in any way to any Material Contract which involves any claim, event or other circumstance the consequences of which could reasonably be expected to have a Material Adverse Effect;
(iii) each Grantor shall mark conspicuously deliver promptly to the Priority Lien Collateral Trustee, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender new Material Contract is entered into by such Grantor, notice thereof as provided herein), with an appropriate reference to the fact that each required by Section 5.1 of the Lender has a security interest therein; Credit Agreement;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts except to the extent contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to promptly and diligently exercise each material right it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract, except where, in its business judgment, it concludes that loss or relinquishment will not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonhave a Material Adverse Effect.
Appears in 2 contracts
Sources: Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Priority Lien Collateral Trustee, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Priority Lien Collateral Trustee as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Priority Lien Collateral Trustee has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; , except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Priority Lien Collateral Trustee shall have the right following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Priority Lien Collateral Trustee’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Priority Lien Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Priority Lien Collateral Trustee; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderPriority Lien Collateral Trustee; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Priority Lien Collateral Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderPriority Lien Collateral Trustee if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Priority Lien Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Priority Lien Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course conduct of its business consistent with prudent business practices or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as permitted by the Credit Agreementotherwise provided in subsection (ii) below, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon. The Lender may ;
(aii) at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation, (1B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent, (2C) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent, and (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Deposit Account that is subject Control Agreement with respect to a deposit account control agreementsuch an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Empire Resorts Inc), Pledge and Security Agreement (Empire Resorts Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of an Event of Defaultexcept as otherwise provided in subsection (v) below, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best commercial efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Joe's Jeans Inc.), Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are is customarily maintained under similar circumstances by Persons of established reputation engaged in a similar businesses; business, and in any event in conformity with GAAP, including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on such Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse EffectEffect or result in an Out-of-Formula Condition under the Credit Agreement. Other than in the ordinary course of business, after the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon. The Lender ;
(iii) to the extent that any Grantor does grant any discounts, allowances or credits pursuant to clause (ii) above or otherwise that are not shown on the face of the invoice for the Receivable involved, such Grantor shall report such discounts, allowances or credits, as the case may be to Agent, and if any amounts due and owing in excess of $100,000 are in dispute between any Grantor and any Account Debtor, or if any returns are made in excess of $100,000 with respect to any Receivables owing from an Account Debtor, such Grantor shall provide Agent with written notice thereof, explaining in detail the reason for the dispute or return, all claims related thereto and the amount in controversy;
(aiv) if a Receivable of any Grantor includes a charge for any taxes payable to any Governmental Authority, each Grantor authorizes Agent, in Agent’s sole discretion, to pay the amount thereof to the proper taxing authority for the account of such Grantor and to charge Borrowers therefor under the Credit Agreement; provided, however, that neither Agent nor Lenders shall be liable for any taxes that may be due by Grantors;
(v) whether or not a Default or an Event of Default exists, Agent shall have the right during reasonable business hours and (so long as no Default or Event of Default exists) no more often than quarterly, in the name of Agent, any designee of Agent or any Grantor to verify the validity, amount or any other matter relating to any Receivables of such Grantor by mail, telephone, telegraph or otherwise, and each Grantor shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such verification process;
(vi) each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation in accordance with Section 5.16 of the Credit Agreement, and shall diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at any time following its own expense, and, in connection with such collections and exercise, such Grantor shall take such action as such Grantor after the occurrence and during the continuance of an Event of Default beyond all applicable notice or Agent may reasonably deem necessary or advisable. Notwithstanding the foregoing, Agent shall have the right at any time following the occurrence and cure periods during the continuation of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Agent; and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderAgent if required, in a Securities Account or Deposit Account that is subject to a deposit account maintained under the control agreementof Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon. Further, each Grantor acknowledges that, regardless of whether an Event of Default exists, Agent may, pursuant to the terms of a Control Agreement, direct each Person maintaining a lockbox or similar arrangement into which Account Debtors under any Receivables make payment, to remit to Agent directly all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement, and each Grantor agrees that any such Person maintaining such lockbox or other arrangement shall be authorized to comply with the instructions of Agent without further consent from such Grantor;
(vii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable; and
(viii) to the best of such Grantor’s knowledge, it shall not create or accept any Account, Instrument, Chattel Paper or other obligation of any kind due from or owed by a Sanctioned Person or own any Chattel Paper in the form of a lease where the lessee thereunder is a Sanctioned Person, and shall promptly notify Agent in writing of any Account Debtor’s status as a Sanctioned Person.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Pledge and Security Agreement (Euramax International, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (m▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent as provided herein), with herein)with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) except as otherwise provided in this subsection, each Grantor shall take such actions as it shall perform determines in good faith are appropriate collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and to exercise each material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, right it shall not amend, modify, terminate or waive any provision of may have under any Receivable any Supporting Obligation or Collateral Support, in any manner which could reasonably be expected to have a Material Adverse Effect. Other than each case, at its own expense, and in the ordinary course of business, after the occurrence connection with such collections and during the continuation of an Event of Defaultexercise, such Grantor shall not (1) grant any extension take such action as such Grantor or renewal of the time of payment of any ReceivableCollateral Agent may deem necessary or advisable. Notwithstanding the foregoing, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice Default, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and cure periods any Supporting Obligation, and, in addition, at any time following the occurrence and during the continuance of an Event of Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iv) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Financing Agreement (Model N, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with the Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously promptly transfer or cause to be transferred all funds arising from the collection of all Receivables (1) to a Collection Account listed on Schedule 4.4(A) hereto (as such schedule may be amended or supplemented from time to time) and (2) in any event, no later than 2 Business Days after transfer to the Collection Account in clause (1) above, to a Concentration Account listed on Schedule 4.4(A) hereto (as such schedule may be amended or supplemented from time to time).
(iii) it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Lender) Secured Party, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Secured Party as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Secured Party has a security interest therein; ;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(vi) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Secured Party may deem necessary or advisable. The Lender may Notwithstanding the foregoing, the Secured Party shall have the right at any time to notify, or require any Grantor to notify (a) and if so, such Grantor shall so notify), any Account Debtor of the Secured Party's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Secured Party may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Secured Party;
Appears in 1 contract
Sources: Pledge and Security Agreement (Atlantic Coast Entertainment Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it It shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to the Lender Administrative Agent as provided herein), as well as the related Receivables Records, with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Administrative Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or which, so long as permitted by the Credit Agreementno Default has occurred and is continuing, it consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, it shall continue to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Administrative Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Administrative Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Administrative Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Administrative Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Administrative Agent and (2B) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to a Controlled Account.
Appears in 1 contract
Covenants and Agreements. Each The Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii2) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv3) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than ; and
(4) notwithstanding the foregoing, the Collateral Trustee shall have the right at any time during the continuance of an Event of Default to notify, or require the Grantor to notify, any Account Debtor of the Collateral Trustee's security interest in the ordinary course of businessReceivables and any Supporting Obligation and, after in addition, at any time following the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Trustee; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any the Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Trustee; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Trustee notifies any the Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Trustee if required, in a Deposit Account that is subject to a deposit an account maintained under the sole dominion and control agreementof the Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Joinder Agreement (Iwo Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) except for the security interests granted hereunder, it shall keep and maintain at its own cost and expense accurate and complete records not create or suffer to exist any Lien upon or with respect to any of the Receivables as are customarily maintained under similar circumstances by Collateral, except Permitted Liens, and it shall defend the Collateral against all Persons of established reputation engaged in similar businesses; at any time claiming any interest therein;
(ii) it shall mark conspicuously (not produce, use or permit any Collateral to be used in a form and manner reasonably satisfactory to any material respect unlawfully or in material violation of any provision of any applicable statute, regulation or ordinance or any policy of insurance covering the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; Collateral;
(iii) it shall perform not change such Grantor's name, identity, corporate structure or jurisdiction of organization unless it shall have (a) notified the Collateral Agent in all material respects all of its obligations with respect writing, by executing and delivering to the Receivables; Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, jurisdiction of organization and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same priority of the Collateral Agent's security interest in the Collateral intended to be granted hereby;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amendpay promptly when due all property and other taxes, modifyassessments and governmental charges or levies imposed upon, terminate or waive any provision of any Receivable and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence good faith and during the continuation of an Event of Defaultby appropriate proceedings diligently conducted; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not (1) grant later than five days prior to the date of any extension proposed sale under any judgment, writ or renewal warrant of attachment entered or filed against such Grantor or any of the time Collateral as a result of payment the failure to make such payment;
(v) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any Receivableevent that may materially and adversely affect the value of the Collateral, (2) compromise the ability of the Collateral Agent to dispose of the Collateral or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment portion thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence rights and during remedies of the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct Collateral Agent in relation thereto, including, without limitation, the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection levy of any such Receivables and to adjust, settle legal process against the Collateral or compromise any portion thereof;
(vi) it shall not take or permit any action which could impair the amount or payment thereof, Collateral Agent's rights in the same manner and to the same extent as such Grantor might have done and Collateral; and
(bvii) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjustsell, settle transfer or compromise assign (by operation of law or otherwise) any Collateral except as permitted under the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon2003 Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) release, wholly or partially, any Person liable for the payment of any Receivable, (y) other than as expressly permitted by Section 4.3(b)(v), compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4z) other than as expressly permitted by Section 4.3(b)(v), allow any credit or discount thereon. The Lender may on any Receivable;
(aiv) at it shall ▇▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any time following delivered to the occurrence Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Agent has a security interest therein;
(v) with respect to Accounts: (A) it shall not re-date any invoice, claim form or sale relating to any Account; (B) if it becomes aware of any matter that is reasonably likely to materially adversely affect any Material Account Debtor, including information regarding such Material Account Debtor's creditworthiness, such Grantor shall promptly so advise the Agent; (C) it shall not accept any note, warrant or other instrument (except a check or other instrument for the immediate payment of money) with respect to any Account without the written consent of the Agent (it being understood that if the Agent consents to the acceptance of any such note, warrant or other instrument, it shall be considered Exhibit E-14 as evidence of the Account and not payment thereof, and such Grantor shall promptly deliver such note, warrant or instrument to the Agent appropriately endorsed and regardless of the form of presentment, demand, notice of dishonor, protest, and notice of protest with respect thereto, the Grantors shall remain liable thereon until such note, warrant or instrument is paid in full); (D) it shall notify the Agent promptly of all disputes and claims (other than as to discounts required by contract or agreement made in the ordinary course of business and corrections of billing errors in the ordinary course of business) with any Account Debtor, involving in excess of fifty thousand dollars ($50,000) for any single dispute or claim and in excess of one hundred thousand dollars ($100,000) for all such disputes and claims, whether any such Account Debtor is acting in its capacity as an Account Debtor or in its individual capacity; (E) it shall not grant any discount, credit or allowance with respect to any Account to any Account Debtor without the consent of the Agent, except for: (i) discounts required by contract or agreement made in the ordinary course of business and corrections of billing errors in the ordinary course of business; and (ii) any other discount which does not exceed fifty thousand dollars ($50,000), provided that the aggregate amount of discounts permitted pursuant to this clause (ii) during any calendar year with respect to any single Account Debtor shall not exceed one hundred thousand dollars ($100,000); (F) if an Account Debtor returns any inventory to such Grantor when no Event of Default exists, then such Grantor shall promptly determine the continuance reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount; provided that such Grantor shall immediately report to the Agent in the event that the aggregate amount of such returns exceed one hundred thousand dollars ($100,000) during any year with respect to any single Account Debtor (which report shall indicate the reasons for the returns and the locations and condition of the returned inventory; and (G) if an Account Debtor returns any inventory to such Grantor when an Event of Default beyond all applicable notice exists and cure periods (1) direct such inventory is returned in a condition that makes it unfit for resale in the Account Debtors under any Receivables to make payment ordinary course of all amounts due or to become due to business, such Grantor thereunder directly shall: (i) hold such returned inventory in trust for the Agent; (ii) segregate all such returned inventory from all of its other Property; (iii) dispose of such returned inventory solely according to the Lender written instructions of the Agent; and (2iv) enforcenot issue any credits or allowances with respect thereto without the prior written consent of the Required Lenders. All returned inventory shall remain subject to the Agent's security interest. Whenever any inventory is returned for which an Account had been created, at such Account shall be credited to the expense extent of such Grantorreturned Inventory, collection of any such Receivables and to adjust, settle or compromise with the amount or payment thereof, credit reported in the same manner Weekly Collateral Certificate; and
(vi) it shall use its best efforts to keep in full force and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, effect any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of relating to any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Covenants and Agreements. Each The Grantor hereby covenants and agrees that: :
(i1) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; accordance with GAAP;
(ii2) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of except as otherwise provided in subsection (4) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(3) it shall m▇▇▇ conspicuously, in form and manner reasonably satisfactory to the Collateral Trustee, all Chattel Paper and Instruments (other than items to be deposited for collection) representing debt with a Fair Market Value of $100,000 (other than any delivered to the Collateral Trustee as provided herein;
(4) except as otherwise provided in this subsection, each Grantor shall continue to collect all material amounts due (subject to paragraph 2 above) or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right (except to the extent such failure would not reasonably be expected to cause a Material Adverse Effect) it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense. The Lender may (a) at At any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods the Collateral Trustee notifies the Grantors as provided in the Indenture, the Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Trustee; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any the Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Trustee; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Trustee notifies any the Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Trustee if required, in a Deposit Account that is subject to a deposit an account maintained under the sole dominion and control agreementof the Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.; and
Appears in 1 contract
Sources: First Lien Security Agreement (Ziff Davis Holdings Inc)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees that: with each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A-1 Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) it the Issuer Trustee shall keep and maintain at its own cost and expense accurate and complete records execute those of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) it shall mark conspicuously the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A-1 Notes and related matters;
(in a form and manner reasonably satisfactory e) to provide reasonable assistance to the Lender) CBA Parties to procure that the charges created by or contained in the Security Trust Deed are registered within all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform applicable time limits in all material respects appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with respect closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Receivables; Class A-1 Notes not being assigned the ratings referred to in Section 6(q) below;
(ivh) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the ordinary course agreed form without the consent of business consistent the Underwriters;
(i) provided the Manager complies with prudent business practices Section 5.II.(r), the Issuer Trustee will:
(i) sign and deliver to the UK Listing Authority a listing application and copies of the Prospectus on or prior to the Closing Date;
(ii) ensure that the Prospectus shall be approved as permitted listing particulars by or on behalf of the Credit AgreementUK Listing Authority as required by Section 144(2) of the Financial Services Act and the Listing Rules; and
(iii) ensure that two copies of the Prospectus shall be delivered to the Registrar of Companies in England and Wales for registration as required by Section 149 of the Financial Services Act, it shall not amend, modify, terminate on or waive any provision before the date of any Receivable in any manner which could reasonably be expected publication thereof;
(j) to have a Material Adverse Effect. Other than in the ordinary course of businessprocure that if, after the occurrence Prospectus has been published and during following the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal admission of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly Class A-1 Notes to the Lender Official List of the UK Listing Authority and admission of the Class A-1 Notes to trading on the London Stock Exchange:
(2i) enforce, at the expense of such Grantor, collection of there is a significant change affecting any such Receivables and to adjust, settle or compromise the amount or payment thereof, matter contained in the same manner and to Prospectus the same extent as such Grantor might have done and inclusion of which was required by Section 146 of the Financial Services Act or by the Listing Rules or by the UK Listing Authority or by the London Stock Exchange; or
(bii) at any time after a significant new matter arises the occurrence and during the continuance inclusion of an Event information in respect of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables would have been directed so required if it had arisen when the Prospectus was prepared, to make payment to remit all amounts representing collections notify the Representative on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to behalf of the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables Underwriters as soon as reasonably practicable and, in accordance with the preceding sentenceListing Rules, to submit to the UK Listing Authority for its approval and, if approved, publish a supplement to the Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it will, before it issues any payments Class A-1 Note, seek a listing of Receivables the Class A-1 Notes on the Official List of the UK Listing Authority and the admission of the Class A-1 Notes to trading on the London Stock Exchange, and use its best efforts to maintain such listing for as long as any of the Class A-1 Notes are outstanding; provided, however, if such listing becomes impossible, to use their best efforts to obtain, and will thereafter use its best efforts to maintain a quotation for, or listing of, the Class A-1 Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of ▇▇▇▇▇▇▇ ▇▇▇▇▇, decide; and
(l) in connection with the initial distribution of the Class A-2 Notes and the Class B Notes, it and each person acting on its behalf (other than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the Dealer Agreement)) has not and will not offer for issue, or invite applications for the issue of, the Class A-2 Notes and the Class B Notes or offer the Class A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class A-2 Notes and the Class B Notes to a person, where the offer or invitation is received by such Grantor shall be promptly deposited that person in Australia, unless the minimum amount payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding any amount lent by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect any of the Receivables, CBA Parties or any Supporting Obligation or Collateral Support shall be received in trust for the benefit associate (as determined under sections 10 to 17 of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment Corporations Law) of any Receivable, CBA Party) on acceptance of the offer by that person is at least A$500,000 or release wholly the offer or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.invitation otherwise does not require disclosure to investors in accordance with Part 6D.2
Appears in 1 contract
Sources: Underwriting Agreement (Securitisation Advisory Services Pty LTD 2000 Med Trust)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; , except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and, acting in good faith and with prudent business judgment, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (Services International LLC)
Covenants and Agreements. Each Grantor Debtor hereby covenants and agrees that: :
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense accurate and complete records not create or suffer to exist any Lien upon or with respect to any of the Receivables as are customarily maintained under similar circumstances by Collateral, except Permitted Liens, and such Debtor shall defend the Collateral against all Persons of established reputation engaged in similar businesses; at any time claiming any interest therein;
(ii) it shall mark conspicuously (not produce, use or permit any Collateral to be used unlawfully or in a form and manner reasonably satisfactory to violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; Collateral;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreementnot change such Debtor's name, it shall not amendidentity, modifycorporate structure, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course sole place of business, after the occurrence and during the continuation chief executive office or jurisdiction of an Event of Default, such Grantor organization or establish any trade names unless it shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may have (a) at any time following notified Secured Party in writing, by executing and delivering to Secured Party a completed Pledge Supplement, substantially in the occurrence and during the continuance form of an Event of Default beyond Exhibit A attached hereto, together with all applicable notice and cure periods (1) direct the Account Debtors under any Receivables Supplements to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforceSchedules thereto, at the expense of such Grantor, collection of least thirty (30) days prior to any such Receivables change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office, jurisdiction of organization or trade name and to adjust, settle or compromise the amount or payment thereof, providing such other information in the same manner and to the same extent connection therewith as such Grantor might have done Secured Party may reasonably request and (b) at taken all actions necessary or advisable to maintain the continuous validity and perfection of Secured Party's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith; provided, such Debtor shall in any time after event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the occurrence date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Debtor or any of the Collateral as a result of the failure to make such payment;
(v) upon such Debtor or any officer of such Debtor obtaining knowledge thereof, it shall promptly notify Secured Party in writing of any event that may materially and during adversely affect the continuance value of an Event the Collateral (other than Pledged Equity Interests) or any portion thereof, the ability of Default, notifyany Debtor or Secured Party to dispose of the Collateral or any portion thereof, or require the rights and remedies of Secured Party in relation thereto, including, without limitation, the levy of any Grantor legal process against the Collateral or any portion thereof; and
(vi) it shall use commercially reasonable efforts to notifydeliver to Secured Party landlord consents, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If extent it occupies and has business activities on any premises as a lessee under a lease, executed by the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor landlord in respect of such lease the Receivables, any Supporting Obligation or Collateral Support shall be received in trust effect of which would subordinate the claims of such landlord to the Liens created under this Agreement and enable Secured Party to access such premises without delay for the benefit purpose of the Lender hereunder and shall be segregated from other funds of enforcing such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonLiens.
Appears in 1 contract
Sources: Pledge and Security Agreement (Majestic Investor Capital Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables;
(ii) at the request of the Collateral Agent (acting upon a Direction of the Requisite Lenders in their reasonable discretion) it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent (acting upon a Direction of the Requisite Lenders in their reasonable discretion), all Chattel Paper and Instruments evidencing with a value in excess of $1,000,000 individually or $2,000,000 in the aggregate together with all such Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; [reserved];
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, and except as otherwise provided in subsection (v) below, (a) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in Effect on the ordinary course value of businessthe Receivables of the Credit Parties, after taken as a whole, as Collateral and (b) upon the occurrence and during the continuation continuance of an Event of Default, at the Collateral Agent’s request, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereonthereon (except, in each case, in respect of returns and/or damaged or defective product); and
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent (acting upon a Direction of the Requisite Lenders) may deem reasonably necessary or advisable and consistent with the ordinary course of ▇▇▇▇▇▇▇’s business. The Lender may (a) Notwithstanding the foregoing but subject in all respects to all Requirements of Law, the Collateral Agent shall have the right following the occurrence and during the continuation of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within three (3) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreementCollateral Agent if required, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; , and in any event in conformity with GAAP;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to each of the Lender) Revolving Collateral Agent and the Term Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Revolving Collateral Agent as provided herein), as well as the Receivables Records relating thereto with an appropriate reference to the fact that each of the Lender Revolving Collateral Agent and the Term Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreementbusiness, it shall not amend, modify, terminate or waive any provision of any Receivable in excess of $250,000 individually for any invoice or $1,000,000 in the aggregate for any account ("MATERIAL RECEIVABLE") in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business, and except as otherwise provided in subsection (v) below, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Material Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon. The Lender ;
(v) except as otherwise provided in this subsection, each Grantor may (a) continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and may exercise each right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense; provided however, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Term Collateral Agent may, subject to the terms of the Intercreditor Agreement: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Term Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderTerm Collateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Term Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within one (1) Business Day) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderTerm Collateral Agent if required, in a Securities Account or Deposit Account that is subject to a deposit account control agreementagreement in the form of Exhibit C or Exhibit D-1, or such other control agreement in form and substance reasonably satisfactory to the Term Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Term Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; provided, further, that, prior to the Discharge of Revolving Obligations, and except as otherwise may be set forth in the Intercreditor Agreement, the Term Collateral Agent shall not have the right to exercise its rights under this subsection unless the Revolving Security Agent shall have first exercised its rights under the related provision in the Revolving Security Agreement;
(vi) except as it shall determine otherwise in the ordinary course of business, it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable; and
(vii) it shall notify the Term Collateral Agent in writing promptly and in any event within ten (10) days after receipt of any Material Receivable in respect of which the Account Debtor is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its material obligations with respect to the Receivables; ;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after and other than as permitted by the occurrence Credit Agreement and during the continuation of except as otherwise provided in subsection (iv) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(iv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Trustee may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Trustee shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Trustee's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Trustee; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Trustee; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Trustee if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(v) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(vi) Delivery and Control of Receivables. With respect to any Receivables in excess of $10,000 individually or $100,000 in the aggregate that is evidenced by, or constitutes, Chattel Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be delivered to the Collateral Trustee (or its agent or designee) appropriately indorsed to the Collateral Trustee or indorsed in blank: (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein. With respect to any Receivables in excess of $10,000 individually or $100,000 in the aggregate which would constitute "electronic chattel paper" under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Collateral Trustee control over such Receivables (within the meaning of Section 9-105 of the UCC): (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein. Any Receivable not otherwise required to be delivered or subjected to the control of the Collateral Trustee in accordance with this subsection (c) shall be delivered or subjected to such control upon request of the Collateral Trustee.
Appears in 1 contract
Sources: Pledge and Security Agreement (Belden & Blake Corp /Oh/)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent as provided herein), with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of its Receivables, taken as a whole, as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in its reasonable business judgment. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, to: (1) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (Mortons Restaurant Group Inc)
Covenants and Agreements. Each Grantor hereby Pledgor covenants and agrees with Lender that: (ia) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations ’s sole duty with respect to the ReceivablesCollateral is to use such care as it uses for similar property for its own account, and Lender shall not be obligated to preserve rights in the Collateral against third parties; (b) Pledgor will (i) be solely responsible for all matters relating to the Collateral, including ascertaining maturities, calls, conversions, exchanges and tenders, (ii) not, and will not purport to, grant or suffer Liens against any Collateral, except for the security interest granted to Lender hereunder or under any other Loan Document, (iii) from time to time take all actions (including entering into any control agreement and obtaining any issuer consent requested by Lender and otherwise cooperate with Lender in obtaining control with respect to that Collateral in which a security interest may be perfected by control pursuant to the UCC, as herein below defined, or other applicable law) and make all filings and recordations required by law or requested by Lender in connection with the creation, perfection or priority of Lender’s security interest in the Collateral (and Pledgor will provide to Lender certified copies of such filings and recordations, including, to the extent applicable, those registrations described in Section 2(b) above), (iv) other than promptly notify Lender of the occurrence of any default hereunder or otherwise in respect of the Obligations and any Acceleration Event, and (v) hold in trust for, and forthwith pay over to Lender in the ordinary course form received (except for any necessary endorsements) all property, proceeds or distributions received by Pledgor on account of business consistent with prudent business practices any Collateral to be held as Collateral; (c) upon Borrower’s or Pledgor’s failure to pay any Obligation when due and payable, Lender may transfer all or any part of the Collateral to Lender’s name or that of its nominee, and exercise all rights as if the absolute owner thereof, and file a proof of claim for, receive payments or distributions on, and exchange or release Collateral in any bankruptcy, insolvency or similar proceeding; (d) Lender is authorized to file financing statements (including amendments and/or continuation statements) to the extent required to perfect its security interest and otherwise give notice to third parties regarding the Collateral without Pledgor’s signature to the extent permitted by applicable law; (e) Pledgor will not change any of Pledgor’s Loan Party Information, tax identification number/social security number (or equivalent number issued by the Credit Agreementapplicable governmental authority of the applicable jurisdiction) or organization identification number (if applicable), in each case without the prior written consent of Lender; (f) Lender may rely on, and act without liability upon the basis of, any communication believed by Lender in good faith to be given to, or received from or authorized by Pledgor; provided, however, that (i) if any such communication is telephonic or oral, it shall be promptly confirmed in writing (including by facsimile) (but (x) the lack of such confirmation or any conflict between such confirmation and the relevant telephonic or oral communications shall not amendaffect Lender’s ability to rely on, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected and to have a Material Adverse Effect. Other than in act without liability upon the ordinary course of business, after the occurrence and during the continuation of an Event of Defaultbasis of, such Grantor shall not telephonic or oral communications and (1y) grant any extension or renewal Pledgor hereby waives the right to dispute Lender’s record of the time terms of payment such telephonic or oral communication, except to the extent of any Receivable, Lender’s gross negligence or wilful misconduct in connection therewith) and (2ii) compromise nothing in this clause (f) shall be deemed to permit Pledgor to give oral or settle any dispute, claim or legal proceeding telephonic notices in contravention of Section 14; (g) with respect to any Receivable for less than Collateral constituting securities or Entity interests, Pledgor will (i) to the total unpaid balance thereofextent possible, ensure that all such Collateral is credited to a Securities Account, (3ii) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables with respect to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables Collateral that is in certificated form, deliver the related certificates to Lender, accompanied by duly executed instruments of transfer or undated assignments in blank and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables otherwise in accordance with the preceding sentenceinstructions of Lender (and, if such certificated securities will not be credited to a Securities Account, ensure that they are included on Schedule B), and (iii) with respect to any payments such Collateral that is not credited to the Securities Accounts, (x) if it has the option, elect to hold assets constituting such Collateral in certificated form (and comply with the requirements of Receivables received clause (ii) above), and (y) with respect to any such Collateral that is in uncertificated form and not credited to a Securities Account, ensure that it is included on Schedule B and take such steps as requested by Lender to obtain the consent from the issuer of any such Grantor shall be promptly deposited by securities or Entity interests, in form and substance satisfactory to Lender in all respects, under which such Grantor issuer consents to the security interest created hereunder and agrees to pay all dividends and distributions on, and all redemption, liquidation or other proceeds of such securities or Entity interests directly to a Securities Account and, in the exact form receivedcase of Collateral constituting securities under the UCC, duly indorsed to comply with instructions originated by such Grantor Lender without further consent by Pledgor; (h) Pledgor at all times shall continue to be the legal and beneficial owner of the Collateral; (i) Pledgor shall cooperate with Lender, including the furnishing of information, legal opinions and certificates, to cause any stock certificates constituting Collateral to be converted into electronic form and/or take any other action requested by Lender to facilitate orderly disposition of shares constituting Collateral in a Deposit Account that is subject the most liquid market available (and, if applicable, Pledgor shall take steps to a deposit account control agreementensure, and until so turned overshall not take any steps to impede, the cooperation of the issuer of such shares and such issuer’s counsel), and to comply with all amounts and proceeds securities laws relating to such disposition (including checks without limitation the filing of any forms with the Securities and Exchange Commission relating thereto); (j) Pledgor shall (i) not (x) incur, create, assume or permit to exist any Lien on any Collateral except Liens granted to Lender pursuant to (or otherwise permitted by) the Loan Documents, (y) if Pledgor is an Entity, engage in any business other than the activities permitted by its Constituent Documents as in effect on the date hereof or (z) if Pledgor is an Entity, amend, supplement or otherwise modify its Constituent Documents as in effect on the date hereof, or consummate a merger in which it is not the surviving Entity or otherwise fundamentally change its organizational structure, in each case without the consent of Lender, such consent not to be unreasonably withheld, (ii) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and (iii) pay its indebtedness and other instruments) received by such Grantor obligations promptly and in accordance with their terms and pay and discharge promptly when due all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the Receivablessame shall become delinquent or in default; (k) Pledgor shall promptly provide, from time to time, such information or documentation regarding the financial condition of Pledgor or otherwise (including financial statements) or compliance with the terms of any Supporting Obligation or Collateral Support Loan Document as Lender may reasonably request; (l) Pledgor shall be received in trust for the benefit not change (i) any of the Loan Party Information, (ii) its tax identification number/social security number (or equivalent number issued by the applicable governmental authority of the applicable jurisdiction) or (iii) its organization identification number (if applicable), in each case without the prior written consent of Lender hereunder and (m) Pledgor shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise comply with each covenant applicable to it set forth in the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonNote.
Appears in 1 contract
Covenants and Agreements. 10.1 Each Grantor hereby covenants of the Sellers agrees that it will, at any time and agrees thatfrom time to time, after the Closing, upon request of the Buyer, do, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey and transfer to and vest in the Buyer and protect its rights, title and interest in and enjoyment of all the Assets.
10.2 The parties hereto shall use their reasonable best efforts to obtain, and to cooperate with each other in obtaining, all authorizations, approvals, licenses, permits and other consents contemplated by Articles VIII and IX.
10.3 During the period from the date of this Agreement through the Closing Date, the Sellers will conduct the operation of their respective Businesses in the ordinary course and in accordance with past practices.
10.4 From the date hereof until the Closing, each of the Sellers shall afford to the Buyer, its attorneys, accountants and such other representatives of the Buyer as the Buyer shall designate to such Seller, free and full access at all reasonable times, and upon reasonable prior notice, to the Assets and the properties, books and records of such Seller, and to interview personnel, suppliers and customers of such Seller, in order that the Buyer may have full opportunity to make such due diligence investigation as it shall reasonably desire of the Assets, the Liabilities and the Businesses.
10.5 In connection with the Buyer's due diligence investigation, the Sellers shall allow an environmental consulting firm selected by the Buyer (the "Environmental Auditor") to have prompt access to the Real Property in order to conduct an environmental investigation, satisfactory to the Buyer in scope (such scope being sufficient to result in a Phase I environmental audit report and a Phase II environmental audit report, if desired by the Buyer), of, and to prepare a report with respect to, the Real Property (the "Environmental Audit"). Each of the Sellers shall provide to the Environmental Auditor: (i) it shall keep and maintain at reasonable access to all of its own cost and expense accurate and complete existing records concerning the matters which are the subject of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businessesEnvironmental Audit; and (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory reasonable access to the Lenderemployees of such Seller and the last known addresses of former employees of such Seller who are most familiar with the matters which are the subject of the Environmental Audit (such Seller agreeing to use reasonable efforts to have such former employees respond to any reasonable requests or inquiries by the Environmental Auditor). The Sellers shall otherwise cooperate with the Environmental Auditor in connection with the Environmental Audit. The Buyer, on the one hand, and the Sellers, on the other hand, shall each bear 50% of the costs, fees and expenses in connection with the Environmental Audit.
10.6 All representations and warranties of the Sellers (which shall include all statements contained in any schedule or certificate furnished or delivered by the Sellers) shall survive the Closing for a period of three (3) years, except for the representations and warranties in Sections 7.4, 7.6, 7.8(b) and 7.10 which shall survive the Closing until the expiration of the applicable statutes of limitation. The Sellers and the Stockholder, jointly and severally, agree to indemnify and hold harmless the Buyer and its officers, directors, employees and agents, and their respective successors and assignees, from and against any and all Chattel Paper losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and Instruments evidencing Receivables fees (other than including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any delivered to of them or asserted against any of them or the Lender as provided hereinAssets (collectively, "Buyer's Damages"), with an appropriate reference to arising out of or based upon: (a) the fact that each failure of any representation or warranty of the Lender has a security interest therein; (iii) it shall perform Sellers contained herein, or in any agreement, certificate, schedule or document executed by the Sellers or the Stockholder in connection herewith, to be true and correct in all material respects as of the Closing Date; provided, however, the Sellers and the Stockholder shall have no obligation to pay Buyer's Damages pursuant to this subsection 10.6(a) unless and until (and only to the extent that) all claims in respect of Buyer's Damages exceed a cumulative aggregate total of Fifty Thousand Dollars ($50,000); (b) the breach of any covenant or agreement of the Sellers or the Stockholder contained in this Agreement; (c) any liability or obligation of the Sellers or the Stockholder not expressly assumed by the Buyer pursuant to this Agreement; or (d) any arrangements or agreements made or alleged to have been made by the Sellers or the Stockholder with any broker, finder or other agent in connection with the transactions contemplated hereby; provided, further, that the aggregate amount of Buyer's Damages required to be paid by the Seller and the Stockholder shall not exceed Twenty-Five Million Dollars ($25,000,000).
10.7 All representations and warranties of the Buyer (which shall include all statements contained in any schedule or certificate furnished or delivered by the Buyer) shall survive the Closing for a period of three (3) years. The Buyer agrees to indemnify and hold harmless each of the Sellers and its obligations Stockholder, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them, or asserted against any of them, arising out of or based upon (a) the failure of any representation or warranty of the Buyer contained herein, or in any agreement, certificate or document executed by the Buyer in connection herewith, to be true and correct in all material respects as of the Closing Date, (b) the breach of any covenant or agreement of the Buyer contained in this Agreement, (c) the Liabilities, or (d) any arrangements or agreements made or alleged to have been made by the Buyer with any broker, finder or other agent in connection with the transactions contemplated hereby.
10.8 Personal property, use and intangible taxes and assessments with respect to the Receivables; Assets shall be prorated on a per diem basis and apportioned between the Sellers and the Buyer as of the date of the Closing. The Sellers shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, periods on or prior to the Closing Date, and the Buyer shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, any period after the Inventory Date. Any sale or transfer taxes attributable to the sale or transfer of the Assets to the Buyer hereunder shall be paid by the Sellers.
10.9 Except as may be required by law or the rules of the New York Stock Exchange or as necessary in connection with the transactions contemplated hereby, no party hereto shall (ivi) make any press release or other public announcement relating to this Agreement or the transactions contemplated hereby, without the prior approval of the other parties hereto or (ii) otherwise disclose the existence and nature of negotiations regarding the transactions contemplated hereby to any person or entity other than such party's accountants, attorneys, agents and representatives, all of whom shall be subject to this nondisclosure obligation as agents of such party. The parties shall cooperate with each other in the ordinary course preparation and dissemination of business consistent any public announcements of the transactions contemplated by this Agreement.
10.10 None of the Sellers or the Stockholder shall pursue, initiate, encourage or engage in, any negotiations or discussions with, or provide any information to, any person or entity (other than the Buyer and its representatives and affiliates) regarding the sale or possible sale to any such person or entity of any of the Assets or capital stock of any of the Sellers or any merger or consolidation or similar transaction involving any of the Sellers.
10.11 The Sellers shall promptly notify the Manufacturers regarding the transactions contemplated by this Agreement. The Buyer shall promptly apply to the Manufacturers for, or cause an affiliate of the Buyer to apply to the Manufacturers for, the issuance of franchises to operate the respective automobile dealerships upon the Real Property. Effective as of the Closing, each of the Sellers shall terminate its Dealer Sales and Service Agreements with prudent business practices the Manufacturers. The Sellers shall fully cooperate with the Buyer, and take all reasonable steps to assist the Buyer, in the Buyer's efforts to obtain its own similar Dealer Sales and Service Agreements with the Manufacturers. The parties acknowledge that the Buyer's Dealer Agreements are subject to the approval of the Manufacturers and that the Buyer would be unable to obtain its own, similar Dealer Sales and Service Agreements absent the Sellers' termination of their respective agreements with the Manufacturers.
10.12 The Buyer shall have the right, but not the obligation, to employ any or as all of the Sellers' employees. If permitted by law and applicable regulations, each Seller shall, in consideration for the Credit Agreementsale of substantially all of such Sellers' assets in bulk, it shall not amendassign and transfer to the Buyer, modifywithout additional charge therefor, terminate or waive any provision the amount of any Receivable reserve in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding Seller's State Unemployment Compensation Fund with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for Businesses and the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly corresponding experience rate.
10.13 Subject to the Lender determination by the Buyer that any of the following actions is not required, the Sellers and the Buyer shall promptly prepare and file Notification and Report Forms under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (2the "HSR Act") enforcewith the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division") and respond as promptly as practicable to all inquiries received from the FTC or the Antitrust Division for additional information or documentation.
10.14 The Sellers shall allow, at cooperate with and assist the Buyer's accountants, and shall instruct the Sellers' accountants to cooperate, in the preparation of audited financial statements of the Sellers as necessary for any required filings by the Buyer with the Securities and Exchange Commission or with the Buyer's lenders; provided, however, that the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor audit shall be promptly deposited borne by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonBuyer.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete in all material respects records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable other than in any manner which could reasonably be expected to have a Material Adverse Effectthe ordinary course of business. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and except as otherwise provided in subsection (v) below, during the continuation continuance of an Event of Default, such Grantor shall not not, without the prior written consent of Collateral Agent acting on instruction of Required Lenders (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon;
(iv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and in its ordinary course of business. The Lender may (a) at any time following Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default beyond all applicable notice Default, the Collateral Agent shall have the right at any time to notify, or require (in each case, in writing) any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and the Collateral Agent may: (1A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent, (2B) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent, and (C) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor in writing that it has elected elected, upon the instruction of the Required Lenders, to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(v) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (Danimer Scientific, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its material obligations with respect to the Receivables; ;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after and other than as permitted by the occurrence Parity Lien Documents and during the continuation of except as otherwise provided in subsection (iv) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(iv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Trustee may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Trustee shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Trustee's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Trustee may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Trustee; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Trustee; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Trustee if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Trustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(v) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (Belden & Blake Corp /Oh/)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested, by Collateral Agent, it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the Lender) ▇▇ ▇he Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after and except as otherwise provided in subsection (v) below, upon the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon. The Lender may ;
(v) it shall (a) at maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Administrative Agent, (b) obtain an agreement (in form and substance satisfactory to Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing Administrative Agent's control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account and, if such Dominion Account is not maintained with Bank of America, requiring immediate transfer of all funds in the Dominion Account to a Dominion Account maintained with Bank of America, and waiving offset rights of such servicer or bank against any time following funds in the lockbox or Dominion Account, except offset rights for customary administrative charges; provided that none of Administrative Agent, Collateral Agent and Lenders assume any responsibility to Grantors for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any check, draft or other item of payment accepted by any bank. Upon the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice Default, the Administrative Agent shall have the right to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may, subject to the Intercreditor Agreement: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender a Dominion Account (or a lockbox relating to a Dominion Account); and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any Any payments of Receivables received by such any Grantor shall be promptly forthwith (and in any event within one (1) Business Day) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit account control agreementDominion Account, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon;
(vi) if any Eligible Account of any Grantor includes a charge for any taxes, Administrative Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Grantor and to charge such Grantor therefor; provided, however, that none of Administrative Agent, Collateral Agent and Lenders shall be liable for any taxes that may be due from any Grantor or with respect to any Collateral.
(vii) whether or not a Default or Event of Default exists, Administrative Agent shall have the right at any time, in the name of Administrative Agent, any designee of Administrative Agent or any Grantor to verify the validity, amount or any other matter relating to any Receivables of any Grantor by mail, telephone or otherwise and each Grantor shall cooperate fully with Administrative Agent in an effort to facilitate and promptly conclude any such verification process; and
(viii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course conduct of its business consistent with prudent business practices or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 15 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as permitted by the Credit Agreementotherwise provided in subsection (ii) below, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon. The Lender may ; (aii) at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation, (1B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent, (2C) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent, and (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Deposit Account that is subject Control Agreement with respect to a deposit account control agreementsuch an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.; and (iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000. 16
Appears in 1 contract
Sources: Pledge and Security Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees with the Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; accordance with prudent business practices;
(ii) it shall mark conspicuously promptly transfer or cause to be transferred all funds arising from the collection of all Receivables to a Deposit Account listed on Schedule 4.4(A)(8)(b) hereto (in a form and manner reasonably satisfactory as such schedule may be amended or supplemented from time to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided hereintime), with an appropriate reference to the fact that each of the Lender has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable other than in any manner which could reasonably be expected to have a Material Adverse Effectaccordance with prudent business practices. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Secured Party may deem necessary or advisable. The Lender may Notwithstanding the foregoing, the Secured Party shall have the right at any time to notify, or require any Grantor to notify (a) and if so, such Grantor shall so notify), any Account Debtor of the Secured Party’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Secured Party may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Secured Party; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecured Party; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done; provided, the Secured Party shall not take any of the actions set forth in this sentence if and to the extent that such action is prohibited under any federal or state law. If the Lender Secured Party notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderSecured Party if required, in a Deposit Collection Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Secured Party, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Secured Party hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon;
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xo Communications Inc)
Covenants and Agreements. Each The Grantor hereby covenants and agrees that: :
(i) At the reasonable request of the Collateral Agent, it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged m▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments (other than checks received in the ordinary course of business) and Instruments evidencing other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Lender Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Collateral Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by the Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by the Grantor in accordance with its good faith business judgment, it shall continue to use its best efforts to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following upon the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require the Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Collateral Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such the Grantor thereunder directly to the Lender Collateral Agent and (2B) enforce, at the cost and expense of such the Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such the Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Agent notifies any the Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such the Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement), and such the Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Security Agreement (Loton, Corp)
Covenants and Agreements. (a) Each Grantor hereby covenants Underwriter, severally and not jointly, and solely as to itself, represents and warrants to and agrees that: with the Trust Manager, Westpac and the Issuer Trustee that as of the date hereof and as of the Closing Date, as follows:
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), Such Underwriter has complied with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations hereunder, including, without limitation, Section 11;
(ii) Prior to the Closing Date each Underwriter shall notify the Trust Manager or Westpac of the earlier of (x) the date on which the Preliminary Prospectus is first used and (y) the time of the first Contract of Sale to which such Preliminary Prospectus relates;
(iii) Prior to the date of the first Contract of Sale made based on the Approved Offering Materials, each Underwriter represents, warrants and agrees that it has not pledged, sold, disposed of or otherwise transferred any Note, Mortgage Loans or any interest in any Note;
(iv) It is understood that the Underwriters will solicit offers to purchase the Notes as follows:
A. Prior to the time that the Underwriters have received the Approved Offering Materials they may, in compliance with the provisions of this Agreement, solicit offers to purchase Notes; provided, that they shall not accept any such offer to purchase a Note or any interest in any Note or Mortgage Loan or otherwise enter into any Contract of Sale for any Note, any interest in any Note or any Mortgage Loan prior to their conveyance of Approved Offering Materials to the investor.
(v) It is understood that the Underwriters will not enter into a Contract of Sale with any investor until the Approved Offering Materials have been conveyed to the investor with respect to the Receivables; (iv) other than in Notes that are the ordinary course subject of business consistent such Contract of Sale.
A. Each Underwriter covenants with prudent business practices the Trust Manager and the Issuer Trustee that after the final Prospectus is available such Underwriter shall not distribute any written or as permitted electronic information concerning the Notes to a prospective investor unless such information is preceded or accompanied by the Credit Agreement, it shall not amend, modify, terminate or waive any provision Final Prospectus. It is understood and agreed that the use of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence written and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables electronic information in accordance with the preceding sentencesentence is not a Free Writing Prospectus and is not otherwise restricted or governed in any way by this Agreement.
B. The Underwriters shall not use any electronic or written information other than the Preliminary Prospectus or the Prospectus in connection with the solicitation of offers to purchase Notes from any prospective investor, and each Underwriter shall not authorize any such use of any electronic or written information other than the Preliminary Prospectus or the Prospectus by any dealer that purchases any such Notes from such Underwriter.
(vi) Each Underwriter agrees that (i) if the Prospectus is not delivered with the confirmation in reliance on Rule 172, it will include in every confirmation sent out the notice required by Rule 173 informing the investor that the sale was made pursuant to the Registration Statement and that the investor may request a copy of the Prospectus from such Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who receives a confirmation, such Underwriter shall deliver a printed or paper copy of such Prospectus without charge; and (iii) if an electronic copy of the Prospectus is delivered by such Underwriter for any purpose, such copy shall be the same electronic file containing the Prospectus in the identical form transmitted electronically to the Underwriter by or on behalf of the Trust Manager specifically for use by the Underwriter pursuant to this Section 5(a)(viii); for example, if the Prospectus is delivered to such Underwriter by or on behalf of the Trust Manager in a single electronic file in pdf format, then such Underwriter will deliver the electronic copy of the Prospectus in the same single electronic file in pdf format.
(vii) If the Trust Manager or an Underwriter determines or becomes aware that any Written Communication (including without limitation any Approved Offering Materials) or oral statement (when considered in conjunction with all information conveyed at the time of Contract of Sale) contains an untrue statement of material fact or omits to state a material fact necessary to make the statements, in light of the circumstances under which they were made, not misleading at the time that a Contract of Sale was entered into, either the Trust Manager or such Underwriter may prepare corrective information with notice to the other party, and such Underwriter shall deliver such information in a manner reasonably acceptable to both parties, to any person with whom a Contract of Sale was entered into, and such information shall provide any such person with the following:
A. Adequate disclosure of the contractual arrangement;
B. Adequate disclosure of the person’s rights under the existing Contract of Sale at the time termination is sought;
C. Adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the information given at the time of the original Contract of Sale; and
D. A meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale.
(viii) Each Underwriter agrees that:
A. on and prior to the date of this Agreement, it has not delivered (or caused any person other than Westpac and its affiliates to deliver) any written information provided for the purpose of (1) determining the initial credit rating of the Notes, including information about the characteristics of the Housing Loans and the legal structure of the Notes, and (2) undertaking credit surveillance on the Notes, including information about the characteristics and performance of the Housing Loans (“Rating Agency Information”) to any nationally recognized statistical rating organization (each, an “NRSRO”), other than the Rating Agency Information set forth on Schedule II;
B. on and after the date of this Agreement, it will not deliver (and will not cause any person other than Westpac and its affiliates to deliver) any written Rating Agency Information to any NRSRO other than with the express written consent of Westpac; and
C. it has not communicated any Rating Agency Information orally to any NRSRO except in circumstances where an authorized representative of Westpac participated in such oral communications. Any costs incurred to the investor in connection with any such termination or reformation shall be subject to Section 7.
(b) The Trust Manager covenants and agrees with each of the several Underwriters as follows:
(i) to prepare the Preliminary Prospectus Supplement and Prospectus and to file such Preliminary Prospectus Supplement and Prospectus pursuant to Rule 424(b) under the Securities Act not later than the time required thereby; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Closing Date except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time, during the period that a Prospectus is required to be delivered in connection with the offer and sale of the Notes, when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriters with copies thereof; to file promptly all reports or definitive proxy or information statements required to be filed by the Trust Manager with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and, for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, to promptly advise the Underwriters of its receipt of notice of the issuance by the SEC of any stop order or of: (a) any order preventing or suspending the use of the Prospectus with respect to the Notes; (b) the suspension of the qualification of the Notes for offering or sale in any jurisdiction; (c) the initiation of or threat of any proceeding for any such purpose; (d) any request by the SEC for the amending or supplementing of the Registration Statement or the Prospectus or for additional information. In the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, the Trust Manager promptly shall use its best efforts to obtain the withdrawal of such order by the SEC;
(ii) to furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the SEC, including all consents and exhibits filed therewith;
(iii) to deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the SEC and each amendment thereto (in each case including exhibits); (b) the Preliminary Prospectus and the Prospectus and any amended or supplemented Prospectus; and (c) any document filed by the Trust Manager and incorporated by reference in the Prospectus (including exhibits thereto). If the delivery of a prospectus is required at any time prior to the expiration of nine months after the Effective Time in connection with the offering or sale of the Notes, and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Trust Manager shall notify the Underwriters and, upon the request of the Underwriters, shall file such document and prepare and furnish without charge to the Underwriters and provide as many copies as the Underwriters may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which corrects such statement or omission or effects such compliance, and in case the Underwriters are required to deliver a Prospectus in connection with sales of any of the Notes at any time nine months or more after the Closing Date, upon the request and expense of the Underwriters, the Trust Manager shall prepare and deliver to the Underwriters as many copies as the Underwriters may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act. Neither the Underwriters’ consent nor the Underwriters’ delivery of any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 of this Agreement;
(iv) to file promptly with the SEC any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Trust Manager or the Underwriters, be required by the Securities Act or requested by the SEC;
(v) prior to filing with the SEC any (a) supplement to the Prospectus or (b) Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent of the Underwriters to the filing, which consent shall not be reasonably withheld;
(vi) to use its best efforts, in cooperation with the Underwriters, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters and Trust Manager may agree, and maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Notes; provided that the Trust Manager shall not be required to become subject to any general consent to service of process or jurisdiction in any jurisdiction in which it is not so qualified as of the date of this Agreement. The Trust Manager will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been so qualified;
(vii) to make generally available to the holders of the Notes and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations;
(viii) until the initial offering of the Notes is complete, to furnish to the Representatives (a) on request, copies of each certificate, the annual statements of compliance and the annual independent certified public accountant’s audit report on the financial statements furnished to the Trustee pursuant to the Basic Documents by first class mail as soon as practicable after such statements and reports are furnished to the Trustee, (b) copies of each amendment to any of the Basic Documents, (c) on each Determination Date or as soon thereafter as practicable, the Bond Factor as of the related Record Date shall be available to the Representatives on Bloomberg, (d) on request, copies of all reports or other communications (financial or other) furnished to holders of the Notes, and copies of any reports and financial statements furnished to or filed with the SEC, any payments governmental or regulatory authority or any national securities exchange and (e) from time to time such other information concerning the Trust or the Trust Manager as the Representatives may reasonably request;
(ix) to the extent, if any, that the ratings provided with respect to the Notes by the Rating Agencies are conditional upon the furnishing of Receivables documents or the taking of any other action by the Trust Manager, the Trust Manager shall use its best efforts to furnish such documents and take any other such action;
(x) to assist the Representatives to make arrangements with DTC, Euroclear system (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream Luxembourg”) concerning the issue of the Notes and related matters; and
(xi) to not take, or cause to be taken, any action and will not knowingly permit any action to be taken which it knows or has reason to believe would result in the Notes not being assigned the ratings referred to in Section 6(xiv) below.
(c) The Issuer Trustee covenants and agrees with each of the Westpac Parties and each of the several Underwriters as follows:
(i) to use the net proceeds received by such Grantor shall be promptly deposited by such Grantor the Issuer Trustee from the sale of the Notes pursuant to this Agreement in the exact form receivedmanner specified in the Prospectus under the caption “Use of Proceeds”;
(ii) the Issuer Trustee will notify the Representatives promptly after it becomes actually aware of any matter which would make any of its representations, duly indorsed by such Grantor warranties, agreements and indemnities herein untrue if given at any time prior to payment being made to the LenderIssuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representatives to remedy and/or publicize the same;
(iii) the Issuer Trustee will pay any stamp duty or other issue, transaction, value added or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Notes or the enforcement or delivery of this Agreement;
(iv) the Issuer Trustee will use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below and, in a Deposit Account that is subject to a deposit account control agreementparticular (a) the Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and until so turned over(b) the Issuer Trustee will assist the Representatives to make arrangements with DTC, all amounts Euroclear and proceeds (including checks and other instruments) received by such Grantor in respect Clearstream Luxembourg concerning the issue of the Receivables, any Supporting Obligation Notes and related matters;
(v) the Issuer Trustee will procure that the charges created by or Collateral Support shall be received contained in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Security T
Appears in 1 contract
Sources: Underwriting Agreement (Westpac Securitisation Management Pty LTD)
Covenants and Agreements. Each Grantor Landlord and Tenant hereby covenants covenant and agrees that: (i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables agree as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may follows:
(a) at any time following All further rights of Tenant under the occurrence and during Lease to renew or extend the continuance Lease shall be exercisable by each Lender, with the actions of an Event of Default beyond all applicable notice and cure periods (1) direct Mortgage Lender having priority over the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection actions of any Mezzanine Lender if such Receivables and parties seek to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and take inconsistent actions.
(b) at any time after the occurrence and during the continuance Any mortgage, deed of an Event of Defaulttrust, notify, security deed or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items instrument from time to time sent encumbering Landlord’s fee interest in the Premises shall be subject and subordinate to the
(c) Notwithstanding anything to the contrary contained elsewhere in the Lease, Tenant or deposited its direct or indirect equity owners, from time to time and without the consent of Landlord, shall have the right to incur indebtedness secured by, and to subject ▇▇▇▇▇▇’s interest in the Lease and the Premises and/or the Mezzanine Collateral to, a leasehold mortgage, deed of trust, deed to secure debt, pledge and assignment of the Mezzanine Collateral and similar liens and associated documents (such lockbox as an assignment of leases and rents and/or a security agreement), and the holder(s) from time to time of such financing and leasehold mortgage, deed of trust, pledge and assignment or other arrangement directly security shall, upon providing notice thereof to Landlord pursuant to the notice provisions of this Consent, have the same rights and benefits under the Lease and this Consent as those granted to the Lenders under the Lease and this Consent, and each such leasehold mortgage, deed of trust, deed to secure debt or similar instrument in favor of any such holder(s) shall constitute a Security Instrument for all purposes hereunder and under the Lease.
(d) Within ten (10) days after request by any Lender. If the Lender notifies any Grantor that it has elected , from time to collect the Receivables in accordance with the preceding sentencetime made, any payments of Receivables received Landlord will execute and deliver to such Lender, or to such other person or entity as may be specified by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by an estoppel certificate containing such Grantor in respect of information concerning the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lease as such Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonmay reasonably request.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records the request of the Receivables as are customarily maintained under similar circumstances by Persons Collateral Agent after the occurrence and during the continuation of established reputation engaged in similar businesses; (ii) an Event of Default, it shall mark conspicuously (cons▇▇▇▇ously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all of its Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent as provided hereinherein and Instruments deposited in a Deposit Account for collection in the ordinary course of business), as well as its Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (ivii) other than in the ordinary course of business consistent with prudent business practices as generally conducted by it, and except as otherwise provided in subsection (iii) below or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after following the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivableof its Receivables, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable of its Receivables for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(iii) except as otherwise provided in this subsection or the Credit Agreement, each Grantor shall continue to collect in accordance with its past business practice, all amounts due or to become due to such Grantor under its Receivables and any Supporting Obligation and diligently exercise in accordance with its past business practice each material right it may have under any of its Receivables, or any Supporting Obligation or Collateral Support therefor, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining 103522660_5 a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit account control agreementdesignated by the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iv) subject to any underlying contractual requirements or provisions, it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any of its material Receivables.
Appears in 1 contract
Sources: Pledge and Security Agreement (Covanta Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it It shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to the Lender Administrative Agent as provided herein), as well as the related Receivables Records, with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Administrative Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or which, so long as permitted by the Credit Agreementno Default has occurred and is continuing, it consent shall not amendbe unreasonably withheld, modifyconditioned or delayed), terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, it shall continue to collect all amounts due or to become due to it under all such Receivables and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Administrative Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Administrative Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Administrative Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Administrative Agent may: (1A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Administrative Agent and (2B) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to a Controlled Account.
Appears in 1 contract
Sources: Pledge and Security Agreement (Harvard Bioscience Inc)
Covenants and Agreements. Each Grantor hereby 4.1 The Issuer covenants and agrees that: (i) it that whenever the Issuer shall keep and maintain at publish or make available to its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory shareholders or to the Lenderpublic (by filing with any regulatory authority, securities exchange or otherwise) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner information which could reasonably be expected to have a Material Adverse Effect. Other than be material in the ordinary course context of businessthis Agreement and the transactions contemplated hereby, after the occurrence Issuer shall notify the Dealers as to the nature of such information, shall make such information available to the Dealers upon request to permit distribution to investors and during prospective investors and shall take such action as may be necessary to ensure that the continuation representation and warranty contained in Clause 3(e) is true and accurate on the dates contemplated by such Clause. Such notification may be by means of an Event electronic communication, including, but not limited to, by email and/or directing the Dealers' attention to information on-line.
4.2 The Issuer covenants and agrees with each Dealer that if that Dealer or any of Defaultits affiliates, such Grantor shall not (1) grant directors, officers or employees, or any extension or renewal person who controls that Dealer for the purpose of Section 15 of the time Securities Act or Section 20 of payment the Exchange Act (each a "Relevant Party") incurs any liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added tax) (a "Loss") as a result of, in connection with or based upon any breach or alleged breach of the representations, warranties, covenants or agreements made by the Issuer in this Agreement or any untrue statement or alleged untrue statement of any Receivablematerial fact contained in the Disclosure Documents or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, (2) compromise in the light of the circumstances under which they were made, not misleading, the Issuer will pay to that Dealer on demand an amount equal to such Loss. No Dealer or settle Arranger shall have any disputeduty or obligation, whether as fiduciary or trustee for any Relevant Party or otherwise, to recover any such payment or to account to any other person for any amounts paid to it under this Clause.
4.3 If any action, proceeding, claim or demand shall be brought or asserted against a Relevant Party in respect of which recovery may be sought from the Issuer, the relevant Dealer shall, upon becoming aware of the same, promptly notify the Issuer in writing. The Issuer may participate at its own expense in the defence of the action. If it elects within a reasonable time after receipt of the notice, the Issuer may assume the defence of the action with legal proceeding with respect advisers chosen by it and approved by the Relevant Party defendant in the action, subject to any Receivable for less than the total unpaid balance thereofpayment by the Issuer of all fees and expenses relating thereto, (3) releaseunless the Relevant Party reasonably objects to the assumption on the ground that there may be legal defences available to it which are different from or in addition to that available to the Issuer. If the Issuer assumes the defence of the action, wholly or partially, any Person the Issuer shall not be liable for any fees and expenses of the payment thereof, legal advisers of the Relevant Party incurred thereafter in connection with the action. In no event shall the Issuer be liable for any fees and expenses of more than one legal adviser or (4) allow firm of legal advisers of the Relevant Party in connection with any credit one action or discount thereonseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. The Lender may Issuer shall not be liable pursuant to Clause 4.2 in respect of any settlement of any such action effected without the consent of the Issuer (such consent not to be unreasonably withheld or delayed).
4.4 The Issuer will:
(a) at pay, or reimburse the Arranger for, all reasonable out-of-pocket costs and expenses (including United Kingdom value added tax and any time following other taxes or duties thereon and fees and disbursements of counsel to the occurrence Arranger) incurred by the Arranger in connection with the preparation, negotiation, printing, execution and during the continuance delivery of an Event this Agreement and all documents contemplated by this Agreement;
(b) pay, or reimburse each Dealer for, all reasonable out-of-pocket costs and expenses (including United Kingdom value added tax and any other taxes or duties thereon and fees and disbursements of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due counsel to such Grantor thereunder directly Dealer) incurred by such Dealer in connection with the enforcement or protection of its rights under this Agreement and all documents contemplated by this Agreement;
(c) pay all stamp, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) except those arising solely as a result of the Dealers' default which may be payable upon or in connection with the creation and issue of the Notes and the execution, delivery and performance of the Agreements; and
(d) notify including by means of electronic communication, including, but not limited to, by email and/or by directing the Dealers' attention to information on-line, each Dealer of any change in the identity of or the offices of the Issue Agent and/or any Paying Agent and any material change or amendment to or termination of the Agency Agreement or the Deed of Covenant not later than ten days prior to the Lender and (2) enforce, at the expense of such Grantor, collection making of any such Receivables change or amendment or such termination; and it will not permit to adjustbecome effective any such change, settle amendment or compromise termination which could reasonably be expected to affect adversely the amount interests of any holder of any Notes then outstanding.
4.5 The Issuer shall take such steps (in conjunction with the Dealers, where appropriate) to ensure that any laws and regulations or payment thereofrequirements of any governmental agency, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, authority or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to institution which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items may from time to time sent be applicable to any Note shall be fully observed and complied with and in particular (but without limitation) that neither the Issuer nor any of its affiliates (as defined in Rule 405 under the Securities Act) nor any person acting on its or deposited its affiliates' behalf has engaged or will engage in any directed selling efforts with respect to the Notes, and they have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act. Terms used in this sub-paragraph have the meanings given to them by Regulation S under the Securities Act.
4.6 The Issuer covenants and agrees promptly to notify including by means of electronic communication, including, but not limited to, by email and/or directing the Dealers' attention to information on-line, the Dealers of any change in the ratings given by Standard & Poor's Rating Services of the Issuer's debt or upon it becoming aware that such lockbox ratings are listed on "Creditwatch" or other arrangement directly to similar publication of formal review by the Lender. If relevant rating agency.
4.7 In respect of any issue of Notes, if the Lender notifies issue of the Notes would otherwise constitute a contravention of section 19 of the FSMA, the Issuer will issue such Notes only if the following conditions apply (or the Notes can otherwise be issued without contravention of section 19 of the FSMA):
(a) the relevant Dealer covenants in the terms set out in paragraph 3(b) of Schedule 2; and
(b) the redemption value of each such Note is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than Sterling), and no part of any Grantor Note may be transferred unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
4.8 Each Dealer represents, covenants and agrees that it has elected to collect the Receivables in accordance complied with and will comply with the preceding sentenceselling restrictions set out in Schedule 2. Subject to compliance with those restrictions, each Dealer is hereby authorised by the Issuer to circulate the Disclosure Documents to purchasers or potential purchasers of the Notes.
4.9 The obligations of each Dealer contained in this Agreement are several. In addition, each of the Dealers agrees that the Arranger has only acted in an administrative capacity to facilitate the establishment and/or maintenance of the Programme and has no responsibility to it for: (a) the adequacy, accuracy, completeness or reasonableness of any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor representation, warranty, undertaking, agreement, statement or information in the exact form receivedInformation Memorandum, duly indorsed by such Grantor this Agreement or any information provided in connection with the Programme; or (b) the nature and suitability to it of all legal, tax and account matters and all documentation in connection with the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect Programme or any issue of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonNotes.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with the Joint Collateral Agent and each other Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations, the cancellation or termination of the Commitments and the cancellation or expiration of all Outstanding Letters of Credit that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously promptly transfer or cause to be transferred all funds arising from the collection of all Receivables (A) to a Deposit Account of any Grantor and (B) in a form and manner reasonably satisfactory any event, no later than two (2) Business Days after transfer to the Lenderaccount in (A) all Chattel Paper above, to a Concentration Account listed on Schedule 4.4(A)(8)(a) hereto (as such schedule may be amended or supplemented from time to time) or, upon the occurrence of and Instruments evidencing Receivables (other than any delivered to during the Lender as provided herein), with existence of an appropriate reference to Event of Default at the fact that each direction of the Lender has Joint Collateral Agent, to a security interest therein; Collection Account listed on Schedule 4.4(A)(8)(c) hereto (as such schedule may be amended or supplemented from time to time);
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; Receivables as it deems appropriate or advisable in the exercise of its business judgment;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, thereof or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect, or cause to be collected, all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, as it deems appropriate or advisable in the exercise of its business judgment, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, during the existence of an Event of Default, the Joint Collateral Agent may deem necessary or advisable. The Lender may Notwithstanding the foregoing, during the existence of an Event of Default, the Joint Collateral Agent shall have the right at any time to notify, or require any Grantor to notify (a) and if so, such Grantor shall so notify), any Account Debtor of the Joint Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Joint Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Joint Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Agent;
Appears in 1 contract
Sources: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under Section 3.3, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall mark conspicuously deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 3.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable;
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract;
(vii) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "NON-ASSIGNABLE CONTRACT"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the date hereof, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter; and
(viii) it shall use its best efforts, after the date hereof, not adjustto be a party to any agreement, settle contract or compromise license that prevents the amount assignment or payment granting of a security interest therein (either by its terms or by any Receivable, federal or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonstate statutory).
Appears in 1 contract
Sources: Security and Pledge Agreement (Delta I Acquisition Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under Section 4.3 of this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Agreement of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Agreements directly to the Collateral Agent;
(ii) it shall mark conspicuously deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Agreement;
(iii) it shall deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Agreement of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Agreement is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as Collateral Agent (to the extent such delivery is permitted by the terms of any such Material Agreement, provided hereinno prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Agreements;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall promptly and diligently exercise each material right (except the right of termination and where the failure to exercise any such right could not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than ) it may have under any Material Agreement and any related Supporting Obligation or Collateral Support, in the ordinary course of businesseach case, after the occurrence at its own expense and, in connection with such collections and during the continuation of an Event of Defaultexercise, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to take such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent action as such Grantor might have done or the Collateral Agent may deem necessary or advisable;
(vi) it shall use its best efforts to keep in full force and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, effect any Supporting Obligation or Collateral Support relating to any Material Agreement;
(vii) it shall be received use its best efforts to prohibit anti-assignment provisions in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor any Material Agreements on a going-forward basis; and
(viii) it shall not adjust, settle enter into any Intellectual Property License which prevents the exercise of remedies by the Collateral Agent with respect to any Inventory or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonEquipment covered by such Intellectual Property License.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep After the occurrence and maintain during the continuance of an Event of Default, in addition to any rights under the Section of this Agreement relating to Receivables, the Priority Lien Collateral Trustee may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Priority Lien Collateral Trustee therein and may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Priority Lien Collateral Trustee;
(ii) it each Grantor shall mark conspicuously deliver promptly to the Priority Lien Collateral Trustee notice of any Material Contract as required pursuant to Section 5.1 of the Credit Agreement;
(iii) each Grantor shall deliver promptly to the Priority Lien Collateral Trustee (1) information with respect to any Material Contract of such Grantor that is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender new Material Contract that is entered into by such Grantor, as provided herein), with an appropriate reference to the fact that each required by Section 5.1 of the Lender has a security interest therein; Credit Agreement;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts except to the extent contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to promptly and diligently exercise each material right it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract, except where, in its business judgment, it concludes that loss or relinquishment will not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonhave a Material Adverse Effect.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that: :
(i) it shall use commercially reasonable efforts to keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables;
(ii) upon the occurrence and during the continuation of an Event of Default, upon the written request of Collateral Agent, it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any such Collateral delivered to the Lender Collateral Agent as provided herein), with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall use commercially reasonable efforts to perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after and except as otherwise provided in subsection (v) below, following the occurrence and during the continuation of an Event of Default, unless otherwise instructed by the Collateral Agent in writing, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon; and
(v) except as otherwise provided in this subsection, each Grantor shall use commercially reasonable efforts to continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and exercise each material right it may have in its reasonable discretion under any Receivable, Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem reasonably necessary or advisable. The Lender may (a) at any time Notwithstanding the foregoing, following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice Default, Collateral Agent shall have the right to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (3) enforce, at the Lenderexpense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days (or such longer period as may be agreed to in writing by Collateral Agent in its sole discretion)) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit an account designated by Collateral Agent maintained under the sole dominion and control agreementof Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Pledge and Security Agreement (Priority Technology Holdings, Inc.)
Covenants and Agreements. Each The Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables;
(ii) it shall mark conspicuously (not evidence Receivables as Chattel Paper or Instruments except with the prior consent of the Secured Party, and it shall ▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Secured Party, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), hereafter created with an appropriate reference to the fact that each of the Lender Secured Party has a security interest therein; ;
(iii) it except as otherwise provided in this subsection, the Grantor shall perform in continue to collect all material respects all of its obligations with respect amounts due or to become due to the Receivables; (iv) other than Grantor under the Receivables and any Supporting Obligation. Notwithstanding anything in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreementforegoing, it shall not amend, modify, terminate or waive at any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after time following the occurrence and during the continuation of an Event of Default, such Grantor shall not the Secured Party may: (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1y) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such the Grantor thereunder directly to the Lender Secured Party; and (2z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any the Grantor to notify, each Person (if any) maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecured Party. If following the Lender occurrence and continuance of an Event of Default the Secured Party notifies any the Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such the Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such the Grantor thereafter in the exact form received, duly indorsed by such the Grantor to the LenderSecured Party if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Secured Party, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such the Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Secured Party hereunder and shall be segregated from other funds of such the Grantor and such the Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Loan Agreement (Vernalis PLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances in all material respects, including, but not limited to, the originals of all documentation with respect to all Receivables, to the extent reasonably required for enforcement by Persons the Administrative Agent, and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) at the Administrative Agent’s request, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Administrative Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; ;
(iii) except as would not have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables; , any Supporting Obligations and any Collateral Support;
(iv) If an Event of Default has occurred and is continuing, other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amend, modify, terminate or waive any provision of any Receivable and except as otherwise provided in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Defaultsubsection (v) below, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon; and
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and, to the extent deemed prudent in such Grantor’s good faith business judgment or in the ordinary course of business as generally conducted by it, diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable in such Grantor’s good faith business judgment or in the ordinary course of business as generally conducted by it. The Lender may (a) at any time following Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default beyond all applicable notice Default, the Administrative Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Administrative Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Administrative Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Administrative Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderAdministrative Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the immediately preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderAdministrative Agent if required, in a Deposit the Administrative Agent’s Account that is subject to a deposit account maintained under the sole dominion and control agreement(within the meaning of the common law) or “control” (within the meaning of Section 9-104 of the UCC) of the Administrative Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Pledge and Security Agreement (Clovis Oncology, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables;
(ii) it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the LenderCollateral Agent(acting upon a Direction of the Requisite Lenders in their reasonable discretion) , all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables with a value in excess of $500,000 individually or $1,000,000 in the aggregate together with all such Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, and except as otherwise provided in subsection (v) below (a) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in Effect on the ordinary course value of business, after such Receivable as Collateral and (b) upon the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent (acting upon a Direction of the Requisite Lenders) may deem necessary or advisable and consistent with the ordinary course of Grantor’s business. The Lender may (a) Notwithstanding the foregoing but subject in all respects to all Requirements of Law, the Collateral Agent shall have the right following the occurrence and during the continuation of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within three (3) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreementCollateral Agent if required, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables;
(ii) it shall shall, subject to the terms of the Intercreditor Agreement, mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to satisfacto▇▇ ▇o the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables in an amount exceeding $100,000 (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive waive, except in the ordinary course of business, any provision of any Receivable Receivables in an amount exceeding $250,000 individually in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivables as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after and except as otherwise provided in subsection (v) below and in the occurrence and during the continuation of Intercreditor Agreement, following an Event of Default, such Grantor shall not (1w) grant any extension extensions or renewal renewals of the time times of payment of any Receivablesuch Receivables, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable such Receivables for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person Persons liable for the payment thereof, or (4z) allow any credit credits or discount discounts thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and use its commercially reasonable efforts to exercise the material rights it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may reasonably deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, subject to the terms of the Intercreditor Agreement, to require any Grantor to notify any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Carmike Cinemas Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate reasonably satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons in all material respects, including, but not limited to, copies of established reputation engaged in similar businesses; all documentation with respect to all Receivables and records of all material dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than except as otherwise provided in this subsection, each Grantor shall use commercially reasonable efforts to continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, if an Event of Default has occurred and is continuing, such Grantor shall use commercially reasonable efforts to take such action as such Grantor or the Administrative Agent may deem necessary. Notwithstanding the foregoing, the Administrative Agent shall have the right at any time following the occurrence and during the continuation of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Administrative Agent’s security interest in the ordinary course of business consistent with prudent business practices or as permitted by the Credit AgreementReceivables and any Supporting Obligation and, it shall not amendin addition, modify, terminate or waive at any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after time following the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods Administrative Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Administrative Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderAdministrative Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with and subject to the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderAdministrative Agent if required, in a Deposit Account that is subject to a deposit account control agreementthe Administrative Agent’s Account, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(v) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (TherapeuticsMD, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records, in all material respects, of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall use commercially reasonable efforts to mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all tangible Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to Collateral Agent as set forth herein) have an aggregate face value in excess of $100,000, as well as the Lender as provided herein), Receivables Records (if requested by Collateral Agent) with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, following the occurrence and during the continuation of an Event of Default, Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, Collateral Agent shall have the right at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (3) enforce, at the Lenderexpense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor into an account designated by Collateral Agent in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon;
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable; and
(vii) in respect of any Receivables having an aggregate face value of $100,000, the Account Debtor of which is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign to the extent such Receivables are subject to an Assignment of Claims Act Statute, the Grantors shall give Collateral Agent written notice thereof and at the request of the Collateral Agent at any time following the occurrence and during the continuance of an Event of Default, the applicable Grantor shall promptly execute and deliver any documentation and take any other action reasonably requested by Collateral Agent to comply with the applicable Assignment of Claims Act Statutes.
Appears in 1 contract
Sources: Pledge and Security Agreement (Lifecore Biomedical, Inc. \De\)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances in all material respects, including, but not limited to, the originals of all documentation with respect to all Receivables, to the extent reasonably required for enforcement by Persons the Administrative Agent, and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) at the Administrative Agent’s request, it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Administrative Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; , any Supporting Obligations and any Collateral Support;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of an Event of Defaultexcept as otherwise provided in subsection (v) below, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon; and
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) at any time following Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default beyond all applicable notice Default, the Administrative Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Administrative Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Administrative Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Administrative Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderAdministrative Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the immediately preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderAdministrative Agent if required, in a Deposit the Administrative Agent’s Account that is subject to a deposit account maintained under the sole dominion and control agreement(within the meaning of the common law) or “control” (within the meaning of Section 9-104 of the UCC) of the Administrative Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Pledge and Security Agreement (Clovis Oncology, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: that until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; business, and in any event in conformity with GAAP including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on such Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of businessbusiness as generally conducted by it, after the occurrence and except as otherwise provided in subsection (v) below, during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon. The Lender ;
(iii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may (a) have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at any time following its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, subject to the provisions of the Intercreditor Agreement, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, subject to the provisions of the Intercreditor Agreement, the Collateral Agent shall have the right at any time following the occurrence and during the continuation of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, subject to the Intercreditor Agreement, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Agent;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby 4.1 WKG covenants and agrees that: with ODE that during the term of this Agreement, ODE and its servants, agents and independent contractors shall have the sole and exclusive right to explore, develop and mine the Property including, but not limited to, the sole and exclusive right to:
(ia) enter on the Property and have sole and exclusive and quiet possession thereof;
(b) do such exploration, development and other mining work on the Property as ODE may deem advisable;
(c) bring upon and erect upon the Property such buildings, plant, machinery and equipment as ODE in its sole discretion may deem advisable (the “Equipment and Fixtures”); and
(d) remove from the Property and dispose of such reasonable quantities of rock, ores, minerals and metals for the purposes of bulk sampling, obtaining assays or making other tests as ODE in its sole discretion may deem advisable; and
(e) do all such further acts as may be, from time to time, reasonably necessary to carry out the full intent and meaning of this Agreement.
4.2 ODE covenants and agrees with WKG that during the term of this Agreement, ODE will:
(a) to the best of its ability, perform any work that it performs on the Property in a good and workmanlike fashion in accordance with sound mining and engineering practices and in accordance with all applicable laws and regulations of all applicable governmental authorities;
(b) be responsible for all reclamation required by federal, state and local laws, rules and regulations, in connection with any activities or operations conducted by it or on its behalf on the Property during the Earn-In Period. WKG will be responsible for any existing reclamation obligations pertaining to the Property, and during the Earn-In Period shall keep perform all such obligations in accordance with applicable federal, state and maintain at its own cost local laws, rules and expense accurate and complete records regulations, except to the extent that ODE notifies WKG in writing that it wishes to use any surface areas on the Property where such reclamation obligations are outstanding, in which case ODE will assume such reclamation obligations. If ODE acquires a 50% interest in the Property, ODE’s reclamation obligations under this paragraph 4.2(b) will become obligations of the Receivables Venture;
(c) indemnify WKG and WKR against, and save WKG and WKR harmless from, all costs, claims, liabilities, damages and expenses of any kind whatsoever that WKG or WKR may incur or suffer in relation to the Property;
(d) permit WKG, or its representative, access to the Property at all reasonable times duly co-ordinated with ODE; and
(e) use its best efforts to obtain the TSX Venture Exchange acceptance of this Agreement.
4.3 ODE and WKG covenant and agree each with the other that:
(a) a finder’s fee of CAD$20,000 is payable to ▇▇▇ ▇▇▇▇▇▇ upon receiving TSX Venture Exchange acceptance of this Agreement, and that fee will be paid jointly and equally by ODE and WKG, in either cash or share issuances at each party’s respective election;
(b) during the term of this Agreement, all information concerning this Agreement or any matters arising from this Agreement shall be treated as are customarily maintained under similar circumstances confidential by Persons the parties hereto and shall not be disclosed by either party hereto to any other party without the previous written consent of established reputation engaged the other party hereto, such consent not to be unreasonably withheld, except to the extent that such disclosure may be necessary for observance of the requirements of the securities commissions, stock exchanges or other legal requirements or for the accomplishment of the purposes of this Agreement, and if a party does not give a definitive written reply to any request for permission to disclose on the second business day following the date request for same is deemed delivered, consent to such disclosure shall be deemed to have been given. ODE and WKG further covenant and agree to use their best efforts to coordinate the timing of issuance of any news releases to be issued regarding a matter arising from or related to this Agreement or the Property;
(c) during the Earn-In Period, ODE shall be responsible for making the payments necessary to maintain the Property in similar businesses; good standing by doing assessment work or making payments in lieu thereof, and by paying taxes and rentals and performing of all other actions which may be necessary in that regard, (iisave and except as otherwise provided for herein) it shall mark conspicuously (provided that ODE will provide all necessary payments and filing material to WKG in a form timely manner and manner reasonably satisfactory WKG will be responsible for administering the payments and filings.
(d) prior to the LenderExercise Date, and except as otherwise set forth in this Agreement, neither WKG nor ODE shall sell, assign, transfer, mortgage, charge or otherwise encumber its interest in this Agreement, or any interest it may acquire in the Property, or any part thereof, in any manner whatsoever, without the prior written consent of the other of WKG and ODE; and
(e) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided hereinnotwithstanding paragraph 4.3(d), with an appropriate reference to both WKG and ODE shall, without the fact that each consent of the Lender has other, be entitled to assign their respective interests to a security interest therein; company (iiithe “Parent”) it shall perform in that owns all material respects of the issued and outstanding shares of WKG or ODE, respectively, to a wholly-owned subsidiary of the Parent or to a wholly-owned subsidiary of WKG or ODE provided that the assignor will continue to be liable for all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit under this Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons in the ordinary course of established reputation engaged in similar businesses; business, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Administrative Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Administrative Agent as provided herein), with an appropriate reference to the fact that each of the Lender Administrative Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations Obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable Accounts or other Receivables in any manner which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of such Receivable as Collateral. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Defaultexcept as otherwise provided in subsection (v) below, such Grantor shall not (1A)(1) grant any extension or renewal of the time of payment of any Receivable, Accounts or other Receivables or (2) allow any credit or discount thereon, or (B)(1) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable Accounts or other Receivables for less than the total unpaid balance thereof, or (32) release, wholly or partially, any Person liable for the payment thereof, so long as, in the case of any action in the ordinary course of business permitted under this clause (B), such Accounts are not Eligible Accounts at the time of such compromise or settlement or release or if such Account is an Eligible Account, such Eligible Account is less than $25,000;
(4v) allow except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any credit Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or discount thereonCollateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Administrative Agent may deem reasonably necessary or advisable. The Lender may Notwithstanding the foregoing, (aA) at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice Default, the Administrative Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Administrative Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, the Administrative Agent may (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Administrative Agent; and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done done; and (bB) at any time after following the occurrence and during of a Cash Dominion Event, the continuance of an Event of Default, Administrative Agent may notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderAdministrative Agent. If the Lender Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in substantially the exact same form received, duly indorsed by such Grantor to the LenderAdministrative Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Administrative Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Credit Agreement (Edgen Group Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; all material respects;
(ii) at the request of the Collateral Agent, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could would reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon; and
(iv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and in accordance with prudent business practices exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and, in addition, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: First Lien Pledge and Security Agreement (Vonage Holdings Corp)
Covenants and Agreements. Each U.S. Grantor hereby covenants and agrees that: :
(i) At the reasonable request of the Collateral Agent, it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments (other than checks received in the ordinary course of business) and Instruments evidencing other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Lender Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records, with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Collateral Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, it shall continue to collect all amounts due or to become due to it under all such Receivables (other than Other Receivables) and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such U.S. Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Collateral Agent may: (1i) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such U.S. Grantor thereunder directly to the Lender Collateral Agent and (2ii) enforce, at the cost and expense of such U.S. Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such U.S. Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Agent notifies any such U.S. Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such U.S. Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement), and such U.S. Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of an Event of Default, at the request of the Collateral Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the Concentration Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records, in all material respects, of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (use commercially reasonable efforts to ▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all tangible Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to Collateral Agent as set forth herein) have an aggregate face value in excess of $100,000, as well as the Lender as provided herein), GS / Landec – Pledge and Security Agreement Receivables Records (if requested by Collateral Agent) with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, following the occurrence and during the continuation of an Event of Default, Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, Collateral Agent shall have the right at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and cure periods any Supporting Obligation and Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (3) enforce, at the Lenderexpense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor into an account designated by Collateral Agent in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon;
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable; and GS / Landec – Pledge and Security Agreement
(vii) in respect of any Receivables having an aggregate face value of $100,000, the Account Debtor of which is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign to the extent such Receivables are subject to an Assignment of Claims Act Statute, the Grantors shall give Collateral Agent written notice thereof and at the request of the Collateral Agent at any time following the occurrence and during the continuance of an Event of Default, the applicable Grantor shall promptly execute and deliver any documentation and take any other action reasonably requested by Collateral Agent to comply with the applicable Assignment of Claims Act Statutes.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: that until the payment in full of all Secured Obligations and termination of all Commitments:
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; business, and in any event in conformity with GAAP, including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on such Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse EffectEffect or result in a Material Impairment. Other than in the ordinary course of businessbusiness as generally conducted by it, after the occurrence and except as otherwise provided in subsection (v) below, during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon. The Lender ;
(iii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may (a) have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at any time following its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default beyond all applicable notice Default, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Agent;
Appears in 1 contract
Sources: Pledge and Security Agreement (Berry Plastics Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (conspicuously, in a form and manner reasonably satisfactory to satisfacto▇▇ ▇o the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Agent;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables Receivables, in reasonable detail as are is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; business, and in any event in conformity with GAAP;
(ii) upon the request of the Collateral Agent, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amend, modify, terminate or waive any provision of any Receivable and except as otherwise provided in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Defaultsubsection (v) below, such Grantor shall not (1A) grant any extension or renewal of the time of payment of any Receivable, (2B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3C) release, wholly or partially, any Person liable for the payment thereof, or (4D) allow any credit or discount thereon, or (E) amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a material and adverse impact on the value of such Receivable as Collateral;
(iv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.; and
Appears in 1 contract
Sources: Financing Agreement (Global Geophysical Services Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that: :
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the its Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; consistent with its past practice;
(ii) at the request of the Collateral Agent after the occurrence and during the continuation of an Event of Default, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all of its Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent or the First Lien Collateral Agent as provided hereinherein and in the First Lien Security Agreement and Instruments deposited in a Deposit Account for collection in the ordinary course of business), as well as its Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; Receivables in accordance with its normal business practice;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted generally conducted by it on and prior to the Credit Agreementdate hereof, it shall not amendand except as otherwise provided in subsection (v) below, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after following the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivableof its Receivables, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable of its Receivables for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect in accordance with its past business practice, all amounts due or to become due to such Grantor under its Receivables and any Supporting Obligation and diligently exercise in accordance with its past business practice each material right it may have under any of its Receivables, or any Supporting Obligation or Collateral Support therefor, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, subject to the terms of the Intercreditor Agreement, the Collateral Agent shall have the right at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and cure periods any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may, subject to the terms of the Intercreditor Agreement: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Agent;
Appears in 1 contract
Sources: Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants 7.1. TRANSFER OF A&G INVESTMENTS ASSETS. ---------------------------------- Concurrently with the Closing the Sellers shall cause A&G to sell, transfer, convey and agrees that: assign to ICI all right, title and interest of A&G in, to and under those assets, properties and rights listed on SCHEDULE 7.1 and the ------------ agreements listed as items 1.b. and 1.c. on SCHEDULE 5.3 (i) it shall keep and maintain at its own cost and expense accurate and complete records collectively, the "A&G ------------ --- Assigned Leases"), in consideration of the Receivables as are customarily maintained payment by ICI to A&G of $398,535 by --------------- wire transfer of immediately available funds at the Closing and in consideration of ICI's assumption of A&G's obligations under similar circumstances by Persons the A&G Assigned Leases, free and clear of established reputation engaged in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables Encumbrances (other than any delivered the A&G Assigned Leases, to the Lender as provided hereinextent any of the same constitute an encumbrance on the equipment leased or sold thereunder), with an appropriate reference pursuant to a ▇▇▇▇ of sale in the fact that form attached hereto as EXHIBIT ------- H-1 (the "A&G ▇▇▇▇ of Sale"), and, in the case each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than A&G Assigned Leases, --- ---------------- an Assignment and Assumption Agreement in the ordinary course of business consistent with prudent business practices or form attached hereto as permitted by EXHIBIT H- --------- 2 (collectively, the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not "A&G Assignment Agreements") (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereofprovided that, in the same manner and case of - ------------------------- such item 1.b. (the "TIP Lease"), in the event the consent of the vendor or --------- lessor thereunder is not obtained prior to the same extent as such Grantor might have done Closing then from and (b) at any time after the occurrence Closing, the Sellers shall use their commercially reasonable efforts to obtain such consent after the Closing, and during the continuance of an Event of DefaultPurchaser shall cooperate in all commercially reasonable respects in connection therewith, notifyand unless and until such consent is obtained, or require any Grantor the Sellers shall cause A&G to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly provide to the Lender. If Companies all of the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds benefits thereunder (including checks and other instruments) received by such Grantor in respect use of the Receivables, any Supporting Obligation equipment leased or Collateral Support shall be received in trust sold thereunder) including enforcement by A&G for the benefit of the Lender hereunder Companies of A&G's rights thereunder, and the Companies shall pay, or reimburse A&G for, all rent and other charges due and payable to vendor or the lessor thereunder and shall be segregated from other funds otherwise perform the obligations of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonA&G thereunder).
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep in addition to any rights under the Section of this Agreement relating to Receivables, after the occurrence and maintain during the continuance of an Event of Default, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein and notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall mark conspicuously deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner that could reasonably satisfactory be expected to the Lenderhave a Material Adverse Effect or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense, and as it deems necessary or advisable in its reasonable business judgment;
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support shall be received in trust for the benefit relating to any Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the Lender hereunder date hereof with respect to any Non-Assignable Contract in effect on the date hereof and shall be segregated from other funds within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Grantor Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use commercially reasonable efforts to obtain such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonconsent as soon as practicable thereafter.
Appears in 1 contract
Sources: Pledge and Security Agreement (Mortons Restaurant Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (m▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: that until the payment in full of all Obligations (other than unmatured contingent obligations) and the expiration or termination of all Hedge Agreements:
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; accordance with its ordinary commercial practice;
(ii) it shall mark conspicuously (m▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender Collateral Agent as provided herein), with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after the occurrence and during the continuation of except as otherwise provided in subsection (v) below, following an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may, subject to the terms of the Intercreditor Agreement: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent; (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderCollateral Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; accordance with GAAP;
(ii) it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all material Chattel Paper and Instruments evidencing Receivables (other than any as delivered to the Lender Collateral Agent as provided herein), ) in excess of $100,000 individually or $500,000 in the aggregate with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could would reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of businessbusiness or in compliance with reasonable commercial practices as generally conducted by it on and prior to the date hereof, after the occurrence and except as otherwise provided in subsection (v) below, during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(iv) except as otherwise provided in this subsection or as constitutes a Permitted Sale, each Grantor shall continue to collect all material amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. The Lender may (a) at At any time following the occurrence and during the continuance of an Event of Default beyond all applicable Default, the Collateral Agent may, following ten (10) days’ prior written notice and cure periods to the Borrower: (1) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, (2) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Collateral Agent; (3) notify, or require any Grantor to notify, each Person maintaining a lockbox account or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox account or other arrangement directly to the Collateral Agent; and (24) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within three (3) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit the Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(v) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any material Receivable.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby 4.1 Given by Isracann – Isracann covenants and agrees that: with the Issuer that it will:
(a) permit representatives of the Issuer, at their own cost, reasonable access during normal business hours to Isracann’s Documents including, without limitation, all of the assets, contracts, financial records and minute books of Isracann, so as to permit the Issuer to make such investigation of Isracann as the Issuer deems reasonably necessary;
(b) assist in the completion of any steps required in any other jurisdictions where Isracann holds assets, which the Issuer may deem reasonably necessary to complete the Transaction;
(c) provide to the Issuer all such further documents, instruments and materials and do all such acts and things as may be reasonably required by the Issuer to seek the Regulatory Approval, including, without limiting the foregoing, all relevant information concerning it and its business, assets, operations and financial statements for inclusion in any public disclosure document to be prepared by the Issuer in connection with the Transaction;
(d) from and including the Effective Date through to and including the Time of Closing, preserve and protect the goodwill, assets and undertaking of Isracann, carry on the Business of Isracann in the ordinary course in a reasonable and prudent manner consistent with past practice;
(e) use its commercially reasonable efforts to obtain all required third party consents, Permits, approvals, authorizations, filings, assignments or waivers and amendments or terminations to any instrument or agreement and take such other measures as may be necessary to fulfil its obligations hereunder and to carry out the transactions contemplated by this Agreement, including obtaining any shareholder approvals, consents or agreements as may be required under applicable corporate laws, securities laws, the rules and policies of the Exchange and the constating documents of Isracann to be able to fulfill its obligations hereunder and in connection with the delivery of all of the Isracann Shares on Closing;
(f) co-operate with the Issuer, in the Issuer’s efforts and at the Issuer’s expense, to obtain the Regulatory Approval with respect to:
(i) it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Transaction;
(ii) it shall mark conspicuously the Convertible Loan, if applicable; and
(iii) such other documents as the Issuer may reasonably request in a form order to obtain the Regulatory Approval;
(g) comply with the terms hereof and manner reasonably satisfactory faithfully and expeditiously seek to satisfy the Lenderconditions precedent set out Section 7.1 and 7.2 so as to close the Transaction and all related transactions by the Closing Date;
(h) all Chattel Paper from and Instruments evidencing Receivables including the Effective Date through to and including the Time of Closing, except as set out in this Agreement, not enter into any agreement or understanding with any other party to issue any securities of Isracann without the prior written consent of the Issuer, such consent not to be unreasonably withheld, other than the issuance of Isracann Shares on due exercise of Isracann Warrants, Isracann Options or (if applicable) Isracann PP Warrants;
(i) from and including the Effective Date through to and including the Time of Closing, not directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into negotiations with, any Person (other than any delivered to the Lender as provided hereinIssuer), with an appropriate reference respect to any amalgamation, merger, consolidation, arrangement, restructuring, sale of any material assets or part thereof of Isracann;
(j) take all necessary corporate action to approve and will complete the fact Isracann Name Change before the Closing Date;
(k) make other necessary filings and applications under applicable, foreign, federal and provincial laws and regulations required on the part of it in connection with the transactions contemplated herein;
(l) use its commercially reasonable efforts to conduct its affairs so that each all of the Lender has a security interest therein; (iii) representations and warranties of it contained herein shall perform be true and correct in all material respects all on and as of its obligations with respect the Closing Date as if made on the Closing Date, except to the Receivables; extent that such representations and warranties require modification to give effect to the transactions contemplated herein;
(ivm) other than in notify the ordinary course Issuer immediately upon becoming aware that any of business consistent with prudent business practices the representations or as permitted by the Credit Agreement, warranties of it shall not amend, modify, terminate or waive any provision of any Receivable contained herein are no longer true and correct in any manner which could reasonably be expected material respect; and
(n) from and including the Effective Date through to have a Material Adverse Effect. Other than in and including the ordinary course Time of businessClosing, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor ensure that it has elected to collect the Receivables complies in accordance all material respects with the preceding sentence, any payments foregoing covenants of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonthis Agreement.
Appears in 1 contract
Sources: Securities Exchange Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate reasonably satisfactory and complete records of the Receivables, including, but not limited to, copies of all material documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon the reasonable request of the Collateral Agent, it shall mark conspicuously (promptly ▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to the Lender Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or except as otherwise permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof, after and except as otherwise provided in subsection (v) below, upon the occurrence and during the continuation continuance of an Event of DefaultDefault or permitted under the Credit Agreement, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary. The Lender may Notwithstanding the foregoing, the Collateral Agent shall have the right upon written notice (awhich, if no Event of Default shall have occurred and be continuing, shall be no less than two Business Days’ prior written notice) to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender Collateral Agent; and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done has the right to do so; and
(vi) it shall use its commercially reasonable efforts to keep in full force and (b) at effect any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any material Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of relating to any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Collateral Receivables, including, but not limited to, the originals of all documentation with respect to all Collateral Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Collateral Receivables, all merchandise returned and all other dealings therewith;
(ii) unless otherwise agreed upon by the Security Agent, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Security Agent, all Chattel Paper included in the Collateral, Instruments (other than checks) in excess of $5 million individually included in the Collateral and Instruments evidencing other evidence of Collateral Receivables in excess of $5 million individually (other than any delivered to the Lender Security Agent as provided herein), as well as the Collateral Receivables Records with an appropriate reference to the fact that each of the Lender Security Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Collateral Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Collateral Receivable in any manner which in the good faith judgment of Grantor could reasonably be expected to have a Material Adverse Effect. material adverse effect on the value of the Collateral Receivables or a substantial portion thereof Other than in the ordinary course of businessbusiness as generally conducted by it on and prior to the date hereof or with the consent of the Security Agent, after the occurrence and except as otherwise provided in subsection (v) below, following and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Collateral Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Collateral Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, thereof or (4z) allow any credit or discount thereon. The Lender may ;
(av) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables except as otherwise provided in this subsection, Grantor shall use commercially reasonable efforts to make payment of collect all amounts due or to become due to such Grantor thereunder directly to under the Lender Collateral Receivables and (2) enforceany Supporting Obligation included in the Collateral and diligently exercise each material right it may have under any Collateral Receivable, any Supporting Obligation included in the Collateral or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, Grantor shall take such action as Grantor may deem necessary or advisable. Notwithstanding the expense of such Grantorforegoing, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in Security Agent shall have the same manner and to the same extent as such Grantor might have done and (b) right at any time after the occurrence and during the continuance of an Event of Default, Default to notify, or require Grantor to notify, any Account Debtor of the Security Agent’s security interest in the Collateral Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Security Agent may: (1) direct the Account Debtors under any Collateral Receivables to make payment of all amounts due or to become due to Grantor thereunder directly to the Security Agent; (2) notify, or require Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Collateral Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the LenderSecurity Agent; and (3) enforce, at the expense of Grantor, collection of any such Collateral Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as Grantor might have done. If the Lender Security Agent notifies any Grantor that it has elected to collect the Collateral Receivables in accordance with the preceding sentence, any payments of Collateral Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderSecurity Agent if required, in a Deposit Collateral Account that is subject to a deposit account maintained under the sole dominion and control agreementof the Security Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Collateral Receivables, any Supporting Obligation included in the Collateral or Collateral Support shall be received in trust for the benefit of the Lender Security Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Collateral Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation included in the Collateral or Collateral Support relating to any Collateral Receivable.
Appears in 1 contract
Sources: Loans Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain in addition to any rights under the Section of this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense accurate and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivables as are customarily maintained security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under similar circumstances by Persons of established reputation engaged in similar businesses; the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it that relates in any way to any Material Contract;
(iii) each Grantor shall mark conspicuously deliver promptly to the Collateral Agent, and in any event within ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a form and manner reasonably satisfactory that is materially adverse to the Lendersuch Grantor or (2) all Chattel Paper and Instruments evidencing Receivables (other than any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Lender as provided hereinCollateral Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with an appropriate reference to the fact that each of the Lender has a security interest therein; respect thereto;
(iiiiv) it shall perform in all material respects all of its obligations with respect to the Receivables; Material Contracts;
(ivv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision promptly and diligently exercise each material right (except the right of any Receivable in any manner which could reasonably be expected to termination) it may have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any Receivable, (2) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4) allow any credit or discount thereon. The Lender may (a) at any time following the occurrence and during the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Lender hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor may deem necessary or advisable;
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Contract; and
(vii) each Grantor shall, settle to the extent reasonably requested by the Collateral Agent within thirty (30) days after entering into any Non-Assignable after the Closing Date, request in writing the consent of the counterparty or compromise counterparties to the amount Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or payment applicable law to the assignment or granting of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereona security interest in such Non-Assignable Contract to Secured Party and use commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees that: with each of the several Underwriters and each of the [ ] Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the [ ] Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) it the Issuer Trustee shall keep and maintain at its own cost and expense accurate and complete records execute those of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses; Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) it shall mark conspicuously the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A Notes and related matters;
(in a form and manner reasonably satisfactory e) to provide reasonable assistance to the Lender) [ ] Parties to procure that the charges created by or contained in the Deed of Charge are registered within all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform applicable time limits in all material respects appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with respect closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Receivables; Class A Notes not being assigned the ratings referred to in Section 6(q) below;
(ivh) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the ordinary course agreed form without the consent of business consistent the Underwriters;
(i) provided the Manager complies with prudent business practices Section 5.II.(r), the Issuer Trustee will:
(i) sign and deliver to the UK Listing Authority a listing application and copies of the Prospectus on or prior to the Closing Date;
(ii) ensure that the Prospectus shall be approved as permitted listing particulars by or on behalf of the Credit AgreementUK Listing Authority as required by Section 144(2) of the Financial Services Act and the Listing Rules; and
(iii) ensure that two copies of the Prospectus shall be delivered to the Registrar of Companies in England and Wales for registration as required by Section 149 of the Financial Services Act, it shall not amend, modify, terminate on or waive any provision before the date of any Receivable in any manner which could reasonably be expected publication thereof;
(j) to have a Material Adverse Effect. Other than in the ordinary course of businessprocure that if, after the occurrence Prospectus has been published and during following the continuation admission of the Class A Notes to the Official List of the UK Listing Authority and admission of the Class A Notes to trading on the London Stock Exchange:
(i) there is a significant change affecting any matter contained in the Prospectus the inclusion of which was required by Section 146 of the Financial Services Act or by the Listing Rules or by the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information in respect of which would have been so required if it had arisen when the Prospectus was prepared, to notify the Representative on behalf of the Underwriters as soon as reasonably practicable and, in accordance with the Listing Rules, to submit to the UK Listing Authority for its approval and, if approved, publish a supplement to the Prospectus of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it will, before it issues any Class A Note, seek a listing of the Class A Notes on the Official List of the UK Listing Authority and the admission of the Class A Notes to trading on the London Stock Exchange, and use its best efforts to maintain such listing for as long as any of the Class A Notes are outstanding; provided, however, if such listing becomes impossible, to use its best efforts to obtain, and to thereafter use its best efforts to maintain a quotation for, or listing of, the Class A Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of [ ], decide; and
(l) in connection with the initial distribution of the Class B Notes, it and each person acting on its behalf (other than the [ ] Parties, each Affiliate of an Event of Default[ ] Party and the Managers (as defined in the Dealer Agreement)) has not and will not offer for issue, such Grantor shall not or invite applications for the issue of, the Class B Notes or offer the Class B Notes for sale or invite offers to purchase the Class B Notes to a person, where the offer or invitation is received by that person in Australia, unless the minimum amount payable for the Class B Notes (1) grant after disregarding any extension or renewal amount lent by any of the time [ ] Parties or any associate (as determined under sections 10 to 17 of payment the Corporations Law) of any Receivable[ ] Party) on acceptance of the offer by that person is at least A$500,000 or the offer or invitation otherwise does not require disclosure to investors in accordance with Part 6D.2 of the Corporations Law.
II. Except where otherwise specified below as a covenant solely applicable to the Manager or [ ], (2) compromise or settle any disputeas the case may be, claim or legal proceeding the [ ] Parties severally covenant and agree with respect to any Receivable for less than each of the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for several Underwriters and the payment thereof, or (4) allow any credit or discount thereon. The Lender may Issuer Trustee as follows:
(a) at any time following in the occurrence and during case of the continuance of an Event of Default beyond all applicable notice and cure periods (1) direct Manager only, to use its best efforts to cause the Account Debtors under any Receivables to make payment of all amounts due or Registration Statement to become due effective at the earliest possible time and, if required, to such Grantor thereunder directly file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the Securities Act, and to furnish copies of the Prospectus to the Lender and Underwriters in New York City prior to 10:00 a.m., New York City time, on the Business Day next succeeding the date of this Agreement in such quantities as the Representative may reasonably request;
(2b) enforcein the case of the Manager only, to deliver, at the expense of the Manager, to the Representative, five signed copies of the Registration Statement (as originally filed) and each amendment thereto, in each case including exhibits, and to each other Underwriter a conformed copy of the Registration Statement (as originally filed) and each amendment thereto, in each case without exhibits and, during the period mentioned in paragraph (f) below, to each of the Underwriters as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) as the Representative may reasonably request;
(c) in the case of the Manager only, before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time the Registration Statement becomes effective, to furnish to the Representative a copy of the proposed amendment or supplement for review and not to file any such Grantorproposed amendment or supplement to which the Representative reasonably objects;
(d) in the case of the Manager only, collection to advise the Representative promptly, and to confirm such advice in writing, (i) when the Registration Statement has become effective, (ii) when any amendment to the Registration Statement has been filed or becomes effective, (iii) when any supplement to the Prospectus or any amendment to the Prospectus has been filed and to furnish the Representative with copies thereof, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose, and (vi) of the occurrence of any event, within the period referenced in paragraph (f) below, as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading and to use its best efforts to prevent the issuance of any such Receivables stop order, or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of any order suspending and such qualification of the Class A Notes, or notification of any such order thereof and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to adjustconfirm such advice in writing of the receipt by an [ ] Party of any notification with respect to any suspension of the qualification of the Class A Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(f) in the case of the Manager only, settle if, during such period of time after the first date of the public offering of the Class A Notes as in the opinion of counsel for the Underwriters a prospectus relating to the Class A Notes is required by law to be delivered in connection with sales by an Underwriter or compromise a dealer, any event shall occur as a result of which it is necessary to amend or supplement the amount or payment thereofProspectus in order to make the statements therein, in the same manner light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare and furnish, at the expense of the [ ] Parties, to the Underwriters and to the same extent dealers (whose names and addresses the Representative will furnish to [ ]) to which Class A Notes may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(g) in the case of the Manager only, to endeavor to qualify the Class A Notes for offer and sale under the securities or Blue Sky laws of such Grantor might have done jurisdictions as the Representative shall reasonably request and to continue such qualification in effect so long as reasonably required for distribution of the Class A Notes; PROVIDED that the Manager shall not be required to file a general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to the holders of the Class A Notes and to the Representative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A Notes are outstanding, to furnish to the Representative (i) copies of each certificate, the annual statement of compliance and the annual independent certified public accountant's audit report on the financial statements furnished to the Issuer Trustee pursuant to the Basic Documents by first class mail as soon as practicable after such statements and reports are furnished to the Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents, (iii) copies of all reports or other communications (financial or other) furnished to holders of the Class A Notes, and copies of any reports and financial statements furnished to or filed with the Commission, any governmental or regulatory authority or any national securities exchange, and (biv) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent such other information concerning the Trust or the [ ] Parties as the Representative may reasonably request;
(j) to the extent, if any, that the ratings provided with respect to the Class A Notes by the Rating Agencies are conditional upon the furnishing of documents or deposited the taking of any other action by an [ ] Party or the Issuer Trustee, the relevant [ ] Party shall use its best efforts to furnish such documents and take any other such action or, in the case of the Issuer Trustee, it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the purposes of 128F of the Australian Tax Act, seek a listing of the Class A Notes on the Official List of the UK Listing Authority and the admission of the Class A Notes to trading on the London Stock Exchange before the Issuer Trustee issues any Class A Note, (ii) ensure that the Issuer Trustee will not offer, issue or sell the Class A Notes to the Underwriters, until the Class A Notes have been admitted to the Official List of the UK Listing Authority and to trading on the London Stock Exchange or the Representative, on behalf of the Underwriters, is satisfied that the Class A Notes will be admitted after the Closing Date and (iii) it will use its best efforts to maintain such lockbox listing for as long as any of the Class A Notes are outstanding; provided, however, if such listing becomes impossible, it will use its best efforts to obtain, and will thereafter use its best efforts to maintain a quotation for, or listing of, the Class A Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of [ ], decide;
(l) to furnish from time to time copies of the Prospectus and any and all documents, instruments, information and undertakings (in addition to any already published or lodged with the UK Listing Authority) and publish all advertisements or other arrangement directly material and to comply with any other requirements of the UK Listing Authority or the London Stock Exchange that may be necessary in order to effect and maintain such listing;
(m) not to take, or cause to be taken, any action and will not knowingly permit any action to be taken which it knows or has reason to believe would result in the Class A Notes not being assigned the rating referred to in Section 6(q) below;
(n) in the case of the Manager only, to assist [ ] in making arrangements with DTC, Euroclear and Clearstream concerning the issue of the Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register the Class A Notes pursuant to the Lender. If Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after such requirement comes into effect but no later that when such registration may become required by law;
(p) in the Lender notifies case of [ ] only, whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay, or cause to be paid, all fees costs and expenses incident to the performance of the [ ] Parties' obligations under this Agreement, including, without limiting the generality of the foregoing, all fees, costs and expenses: (i) incident to the preparation, issuance, execution, authentication and delivery of the Notes, including any Grantor that it has elected up-front fees, costs and expenses of the Class A Note Trustee or any transfer agent, (ii) incident to collect the Receivables preparation, printing and filing under the Securities Act of the Registration Statement, the Prospectus and any preliminary prospectus (including in accordance each case all exhibits, amendments and supplements thereto), (iii) incurred in connection with the preceding sentence, any payments registration or qualification and determination of Receivables received by eligibility for investment of the Class A Notes under the laws of such Grantor shall be promptly deposited by such Grantor in jurisdictions as the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds Underwriters may designate (including checks fees of counsel for the Underwriters and other instrumentstheir disbursements with respect thereto), (iv) received by such Grantor in respect connection with the listing of the ReceivablesNotes on any stock exchange, (v) related to any Supporting Obligation or Collateral Support shall be received in trust for the benefit filing with National Association of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.Se
Appears in 1 contract
Covenants and Agreements. Each U.S. Grantor hereby covenants and agrees that: :
(i) At the reasonable request of the Collateral Agent, it shall keep and maintain at its own cost and expense accurate and complete records of the Receivables as are customarily maintained under similar circumstances by Persons of established reputation engaged ▇▇▇▇ conspicuously, in similar businesses; (ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments (other than checks received in the ordinary course of business) and Instruments evidencing other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Lender Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records, with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; .
(iiiii) it shall perform in all material respects all of its obligations with respect to It will not, without the Receivables; Collateral Agent’s prior written consent (iv) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1) grant any extension or renewal of the time of payment of any such Receivable, (2) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (3) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (4) allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, it shall continue to collect all amounts due or to become due to it under all such Receivables (other than Other Receivables) and any Supporting Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. The Lender may (a) Notwithstanding the foregoing, the Collateral Agent shall have the right at any time following after the occurrence and during the continuance of an Event of Default beyond all applicable notice to notify, or require such U.S. Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent’s security interest therein, and cure periods in addition, at any time during the continuation of an Event of Default, the Collateral Agent may: (1i) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such U.S. Grantor thereunder directly to the Lender Collateral Agent and (2ii) enforce, at the cost and expense of such U.S. Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such U.S. Grantor might would be able to have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lenderdone. If the Lender Collateral Agent notifies any such U.S. Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such U.S. Grantor shall not be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and commingled with any of its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary indorsement), and such U.S. Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon.
(iv) It shall use its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of an Event of Default, at the request of the Collateral Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the Concentration Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) it shall mark conspicuously (in a form and manner reasonably satisfactory to the Lender) all Chattel Paper and Instruments evidencing Receivables (other than any delivered to the Lender as provided herein), with an appropriate reference to the fact that each of the Lender has a security interest therein; (iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iviii) other than in the ordinary course of business consistent with prudent business practices or as permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business, after the occurrence and during the continuation of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) other than as expressly permitted by SECTION 4.3(b)(v) release, wholly or partially, any Person liable for the payment of any Receivable, (y) other than as expressly permitted by SECTION 4.3(b)(v), compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3) release, wholly or partially, any Person liable for the payment thereof, or (4z) other than as expressly permitted by SECTION 4.3(b)(v), allow any credit or discount thereon. The Lender may on any Receivable;
(aiv) at it shall mark conspicuously, in form and manner reasonably satisfact▇▇▇ to the Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any time following delivered to the occurrence Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Agent has a security interest therein;
(v) with respect to Accounts: (A) it shall not re-date any invoice, claim form or sale relating to any Account; (B) if it becomes aware of any matter that is reasonably likely to materially adversely affect any Material Account Debtor's ability to pay on a timely basis its Accounts, such Grantor shall promptly so advise the Agent; (C) it shall not accept any note, warrant or other instrument (except a check or other instrument for the immediate payment of money) with respect to any Account with an outstanding principal balance in excess of two hundred thousand dollars ($200,000) without the written consent of the Agent (it being understood that if the Agent consents to the acceptance of any such note, warrant or other instrument, it shall be considered as evidence of the Account and not payment thereof, and such Grantor shall promptly deliver such note, warrant or instrument to the Agent appropriately endorsed and regardless of the form of presentment, demand, notice of dishonor, protest, and notice of protest with respect thereto, the Grantor to the extent it receives payment thereon shall remain liable thereon until such note, warrant or instrument is paid in full); (D) it shall notify the Agent promptly of all disputes and claims (other than as to discounts required by contract or agreement made in the ordinary course of business, corrections of billing errors in the ordinary course of business and price increases requested or required in the ordinary course of business) with any Material Account Debtor; (E) it shall not grant any discount, credit or allowance with respect to any Account to any Account Debtor without the consent of the Agent, except for modifications, extensions, discounts, credits and allowances: (i) required by contract or agreement made in the ordinary course of business (including to resolve warranty claims) and corrections of billing errors in the ordinary course of business; (ii) outside the ordinary course of business but in accordance with reasonable business practices and involving aggregate concessions not in excess of five hundred thousand dollars ($500,000) in any fiscal year or (iii) outside the ordinary course of business but in accordance with reasonable business practices which are acceptable to the Agent; (F) if an Account Debtor returns any inventory to such Grantor when no Event of Default exists, then such Grantor shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount; PROVIDED that such Grantor shall promptly report to the Agent in the event that the aggregate amount of such returns exceed one hundred thousand dollars ($100,000) during any year with respect to any single Account Debtor (which report shall indicate the continuance reasons for the returns and the locations and condition of the returned inventory); and (G) if an Account Debtor returns any inventory to such Grantor when an Event of Default beyond all applicable notice exists and cure periods (1) direct such inventory is returned in a condition that makes it unfit for resale in the Account Debtors under any Receivables to make payment ordinary course of all amounts due or to become due to business, such Grantor thereunder directly shall: (i) hold such returned inventory in trust for the Agent; (ii) segregate all such returned inventory from all of its other property; (iii) dispose of such returned inventory solely according to the Lender written instructions of the Agent; and (2iv) enforcenot issue any credits or allowances with respect thereto without the prior written consent of the Required Lenders. All returned inventory shall remain subject to the Agent's security interest. Whenever any inventory is returned for which an Account had been created, at such Account shall be credited to the expense extent of such Grantorreturned Inventory, collection of any such Receivables and to adjust, settle or compromise with the amount or payment thereof, credit reported in the same manner Weekly Collateral Certificate; and
(vi) it shall use its best efforts to keep in full force and to the same extent as such Grantor might have done and (b) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Lender. If the Lender notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Deposit Account that is subject to a deposit account control agreement, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, effect any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of relating to any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that: :
(i) it shall keep and maintain at its own cost and expense accurate satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables as are customarily maintained under similar circumstances by Persons and records of established reputation engaged in similar businesses; all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent's reasonable request, it shall mark conspicuously (▇▇▇▇ conspicuously, in a form and manner reasonably satisfactory to the Lender) Collateral Agent, all Chattel Paper Paper, Instruments and Instruments evidencing other evidence of Receivables (other than any delivered to Collateral Agent (subject to the Lender terms of the Intercreditor Agreement to the extent then in effect) as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Lender Collateral Agent has a security interest therein; ;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables; ;
(iv) other than in the ordinary course of business consistent with prudent business past practices or as permitted by the Credit Agreementand while no Event of Default exists, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business, and except as otherwise provided in subsection (v) below, after the occurrence and during the continuation continuance of an Event of Default, such Grantor shall not (1w) grant any extension or renewal of the time of payment of any Receivable, (2x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (3y) release, wholly or partially, any Person liable for the payment thereof, or (4z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection or as permitted by subsection (iv) above, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or Collateral Agent may deem necessary or advisable. The Lender may (a) Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuance continuation of an Event of Default beyond all applicable notice and cure periods Default, Collateral Agent may: (1A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Lender and Collateral Agent (2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and subject to the same terms of the Intercreditor Agreement, to the extent as such Grantor might have done and then in effect); (bB) at any time after the occurrence and during the continuance of an Event of Default, notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent (subject to the Lenderterms of the Intercreditor Agreement, to the extent then in effect); and (C) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Lender Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be promptly forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the LenderCollateral Agent if required, in a Deposit Account that is subject to a deposit collateral account control agreement(the "COLLATERAL ACCOUNT"), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Lender Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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