Common use of Equipment Collateral Clause in Contracts

Equipment Collateral. Without limiting the other terms of this Agreement and the other Financing Agreements relating to Collateral the following shall be specifically applicable to the Equipment Collateral. The Equipment Collateral shall be kept primarily at the location(s) shown on the Schedule(s) hereunder (unless the Equipment Collateral is mobile, in which case it may be moved in the ordinary course of business), and Borrower shall give prompt written notice to Equipment Finance of any change in the location(s) of the Equipment Collateral. Notwithstanding the foregoing, the Equipment Collateral shall not be moved outside the United States without Equipment Finance’s prior written consent. The Equipment Collateral is not attached, and Borrower shall not permit the Equipment Collateral to become attached, to real estate in such a way that it would be considered part of the realty or designated a “fixture.” Notwithstanding any presumption of applicable law, and irrespective of any manner of attachment, the Equipment Collateral shall not be deemed real property but shall retain its character as personal property. However, Borrower shall at the option of Equipment Finance furnish the latter with waiver(s) in recordable form, signed by all persons having an interest in the real estate, of any interest in the Equipment Collateral which is or might be deemed to be prior to Equipment Finance’s interest. Borrower shall use the Equipment Collateral for business purposes only and operate it by qualified personnel in accordance with applicable manufacturers’ and regulatory maintenance and performance standards. Borrower shall adhere to reasonable practices for Borrower’s industry and the type of Equipment Collateral, for security against terrorism and other risks. Borrower shall keep the Equipment Collateral in good working order, condition and repair and shall not waste or destroy the Equipment Collateral or any part thereof; Borrower shall keep the Equipment Collateral appropriately protected from the elements, and shall furnish all required parts and servicing (including any contract service necessary to maintain the benefit of any warranty of the manufacturer); and Borrower shall not use the Equipment Collateral in violation of any statute, ordinance, regulation or order. Equipment Finance may examine and inspect the Equipment Collateral and any and all books and records of Borrower related to the Equipment Collateral during business hours upon reasonable notice; such right of inspection shall include the right to copy Borrower’s books and records related to the Equipment Collateral and to converse with Borrower’s officers, employees, agents, and independent accountants about the Equipment Collateral. EQUIPMENT FINANCE MAY SELL OR ASSIGN ANY AND ALL RIGHT, TITLE AND INTEREST IT HAS IN THE EQUIPMENT COLLATERAL AND/OR ARISING UNDER THIS AGREEMENT. BORROWER SHALL, UPON THE DIRECTION OF EQUIPMENT FINANCE: 1) EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTUATE SUCH ASSIGNMENT AND, 2) PAY DIRECTLY AND PROMPTLY TO EQUIPMENT FINANCE’S ASSIGNEE WITHOUT ABATEMENT, DEDUCTION OR SET-OFF, ALL AMOUNTS WHICH HAVE BECOME DUE UNDER THE ASSIGNED AGREEMENTS. EQUIPMENT FINANCE’S ASSIGNEE SHALL HAVE ANY AND ALL RIGHTS, IMMUNITIES AND DISCRETION OF EQUIPMENT FINANCE HEREUNDER AND SHALL BE ENTITLED TO EXERCISE ANY REMEDIES OF EQUIPMENT FINANCE HEREUNDER. ALL REFERENCES HEREIN TO EQUIPMENT FINANCE SHALL INCLUDE EQUIPMENT FINANCE’S ASSIGNEE (EXCEPT THAT SAID ASSIGNEE SHALL NOT BE CHARGEABLE WITH ANY OBLIGATIONS OR LIABILITIES HEREUNDER OR IN RESPECT HEREOF THAT ARISE PRIOR TO THE DATE OF THE ASSIGNMENT AND ARE RETAINED BY THE ASSIGNOR EQUIPMENT FINANCE). BORROWER SHALL NOT ASSERT AGAINST EQUIPMENT FINANCE’S ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR SET-OFF WHICH BORROWER MAY HAVE AGAINST EQUIPMENT FINANCE. BORROWER SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT OR ENTER INTO ANY AGREEMENT REGARDING ALL OR ANY PART OF THE EQUIPMENT COLLATERAL WITHOUT THE PRIOR WRITTEN CONSENT OF EQUIPMENT FINANCE, WHICH SHALL NOT BE UNREASONABLY WITHHELD. IN CONNECTION WITH THE GRANTING OF SUCH CONSENT AND THE PREPARATION OF NECESSARY DOCUMENTATION, A FEE SHALL BE ASSESSED EQUAL TO $3,500 PLUS REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY EQUIPMENT FINANCE. In the event that Equipment Finance has consented to any lease of the Equipment Collateral, Borrower hereby assigns and grants to Equipment Finance a security interest in any and all rights under any lease(s), to secure all obligations to Equipment Finance, and Borrower shall deliver to Equipment Finance the original of such lease(s). Borrower hereby appoints Equipment Finance as its attorney-in-fact to sign Borrower’s name and to make non-material amendments (including completing and conforming the description of the Equipment Collateral) on any document in connection with this Agreement, including any document necessary for processing vehicle certificate(s) of title, and to obtain, adjust and settle any insurance required by this Agreement and to endorse any drafts in connection with such insurance.