Common use of Additional Collateral Provisions Clause in Contracts

Additional Collateral Provisions. (a) It is expressly agreed by Borrower that, notwithstanding anything herein to the contrary, Borrower shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform all the conditions and obligations to be observed and performed by it thereunder, and Lender shall have no obligation or liability whatsoever to any Person under any such contract, instrument, permit or license (between Borrower and any Person other than Lender) by reason of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the obligations of Borrower, (ii) to make any payment or inquiry, or (iii) to take any action of any kind to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times under or pursuant to any such contract, instrument, permit or license. (b) After the occurrence and during the continuance of an Event of Default, Borrower, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Lender promptly upon Lender’s reasonable request, the following reports: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Lender may request. Lender shall be permitted to observe and consult with Borrower’s accountants in the performance of these tasks. (c) For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to Borrower) to use, transfer, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by Borrower, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of any third Person; provided, that such license will terminate upon the termination of the Lender’s Liens in the Collateral. (d) Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Lender shall be deemed to have exercised reasonable care if such property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such action with respect to the Collateral as Borrower shall request or agree to in writing provided that neither failure to comply with any such request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to the Collateral in Lender’s custody. All risk, loss, damage or destruction of the Collateral shall be borne by Borrower.

Additional Collateral Provisions. (a) It is Borrowers will defend the Collateral against all Liens (other than Liens of WFPC, DSC and other Liens expressly agreed by Borrower that, notwithstanding anything herein permitted pursuant to the contrary, Borrower shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform all the conditions and obligations to be observed and performed by it thereunderSection 7.6), and Lender shall have no obligation or liability whatsoever to any Person under any such contract, instrument, permit or license (between Borrower claims and any Person other than Lender) by reason demands of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the obligations of Borrower, (ii) to make any payment or inquiry, or (iii) to take any action of any kind to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled all Persons at any time claiming the same or times under any interest therein. Furthermore, Borrowers shall promptly notify WFPC in writing upon incurring or pursuant otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of WFPC, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by WFPC to give WFPC a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. The definition of “Collateral” shall include any such Commercial Tort Claim, and the authorization given by Borrowers to WFPC in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such contract, instrument, permit or licenseCommercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the date hereof. (b) After In addition to the occurrence foregoing, Borrowers shall perform all further acts that may be lawfully and during reasonably required by WFPC to secure WFPC and effectuate the continuance intentions and objects of an Event of Defaultthis Agreement, Borrowerincluding, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Lender promptly upon Lender’s reasonable requestbut not limited to, the following reports: execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain landlord waivers. At the request of WFPC, Borrowers shall, immediately deliver (i) a reconciliation with execution by Borrowers of all Accounts; (ii) an aging of necessary documents or forms to reflect, implement or enforce all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Lender may request. Lender shall be permitted to observe and consult with Borrower’s accountants in the performance of these tasks. (c) For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to BorrowerLiens described herein thereon) to use, transfer, license or sublicense any Intellectual WFPC all certificates of title to note the Lien of WFPC thereon and all items of Property now owned, licensed to, or hereafter acquired by Borrower, and wherever the same may be located, and including in such license access for which WFPC must receive possession to all media in which any of the licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of any third Person; provided, that such license will terminate upon the termination of the Lender’s Liens in the Collateralobtain and/or maintain perfected security interests. (d) Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Lender shall be deemed to have exercised reasonable care if such property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such action with respect to the Collateral as Borrower shall request or agree to in writing provided that neither failure to comply with any such request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to the Collateral in Lender’s custody. All risk, loss, damage or destruction of the Collateral shall be borne by Borrower.

Additional Collateral Provisions. (a) It is expressly agreed by Borrower that, notwithstanding anything herein to Borrowers will defend the contrary, Borrower shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform against all the conditions and obligations to be observed and performed by it thereunderLiens (other than Permitted Liens), and Lender shall have no obligation or liability whatsoever to any Person under any such contract, instrument, permit or license (between Borrower claims and any Person other than Lender) by reason demands of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the obligations of Borrower, (ii) to make any payment or inquiry, or (iii) to take any action of any kind to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled all Persons at any time claiming the same or times under any interest therein. Borrowers agree to comply with the requirements of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral including, without limitation, executing such documents as Agent may require to obtain control over all Deposit Accounts, Letter-of-Credit Rights and Investment Property, as applicable. Furthermore, Borrowers shall promptly notify Agent in writing upon incurring or pursuant otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of Agent, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by Agent to give Agent a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. Collateral shall include any such Commercial Tort Claim, and the authorization given by Borrowers to Agent in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such contract, instrument, permit or licenseCommercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the date hereof. (b) After In addition to the occurrence foregoing, Borrowers shall perform all further acts that may be lawfully and during reasonably required by Agent to secure Agent and effectuate the continuance intentions and objects of an Event of Defaultthis Agreement, Borrowerincluding, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Lender promptly upon Lender’s reasonable requestbut not limited to, the following reports: execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain Acknowledgment and Waiver Agreements. At the request of Agent, Borrowers shall, immediately deliver (i) a reconciliation with execution by Borrowers of all Accounts; (ii) an aging of necessary documents or forms to reflect, implement or enforce all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Lender may request. Lender shall be permitted to observe and consult with Borrower’s accountants in the performance of these tasks. (c) For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to BorrowerLiens described herein thereon) to use, transfer, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by Borrower, Agent all certificates of title to note the Lien of Agent thereon and wherever the same may be located, and including in such license access all items of Collateral for which Agent must receive possession to all media in which any of the licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of any third Person; provided, that such license will terminate upon the termination of the Lender’s Liens in the Collateralobtain and/or maintain perfected security interests. (d) Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Lender shall be deemed to have exercised reasonable care if such property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such action with respect to the Collateral as Borrower shall request or agree to in writing provided that neither failure to comply with any such request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to the Collateral in Lender’s custody. All risk, loss, damage or destruction of the Collateral shall be borne by Borrower.

Additional Collateral Provisions. (a) It If any Collateral is expressly agreed by Borrower that, notwithstanding anything herein to in the contrary, Borrower shall remain liable under each item possession or control of Collateral consisting any agents or processors of a contractDebtor and Agent so requests, instrumentsuch Debtor agrees to notify such agents or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, permit or license to observe upon the request of Agent, authorize and perform instruct all the conditions and obligations to be observed and performed by it thereunder, and Lender shall have no obligation or liability whatsoever to any Person under any such contract, instrument, permit or license (between Borrower bailees and any Person other than Lender) by reason of parties, if any, at any time processing, labeling, packaging, holding, storing, shipping or arising out transferring all or any part of the execution, delivery or performance of this Agreement, Collateral to permit the Secured Parties and Lender shall not be required or obligated in any manner (i) their respective representatives to perform or fulfill examine and inspect any of the obligations of Borrower, (ii) Collateral then in such party’s possession and to make verify from such party’s own books and records any payment information concerning the Collateral or inquiry, any part thereof which the Secured Parties or (iii) their respective representatives may seek to take any action of any kind to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times under or pursuant to any such contract, instrument, permit or licenseverify. (b) After the occurrence and during the continuance of an Event of Default, Borrower, at its own expense, shall cause the certified public accountant then engaged by Borrower Each Debtor agrees from time to prepare and time to deliver to Lender promptly upon LenderAgent such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s reasonable requestwarranty of the genuineness thereof, and reports stating the following reports: (i) a reconciliation book value of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; its Inventory and (iv) test verifications of such Accounts Equipment by major category and location), in each case as Lender Agent may reasonably request. Lender Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be permitted subject to observe the terms of this Agreement), and consult with Borrower’s accountants each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in the performance of these tasksconnection therewith. (c) For Section 3 of the purpose Perfection Certificate contains a true, complete, and current listing of enabling Lender all patents, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to exercise be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein). (d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly. (e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its rights lien and remedies under the Loan Documentssecurity interest hereunder, Borrower hereby grants to Lender an irrevocableincluding, non-exclusive license without limitation, (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty i) such financing statements or other compensation instruments and documents as Agent may from time to Borrowertime reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to usepatents, transfertrademarks, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by Borrowercopyrights, and wherever similar intellectual property rights as Agent may from time to time reasonably require to comply with the same may be locatedfiling requirements of the United States Patent and Trademark Office and the United States Copyright Office, and including (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in such license access to all media in which any of the licensed items may be recorded or stored this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to all computer and automatic machinery software and programs used for cause the compilation or printout thereofrelevant depository institutions, financial intermediaries, and representsissuers to execute and deliver such control agreements, promises as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees that any such license or sublicense is not to mark its books and will not be in conflict with records to reflect the contractual or commercial rights lien and security interest of any third Person; provided, that such license will terminate upon the termination of the Lender’s Liens Agent in the Collateral. (df) Lender shall have no duty On failure of care with respect any Debtor to perform any of the Collateral except that Lender shall exercise reasonable care with respect covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the Collateral in Lender’s custodyprotection of the security hereof. Lender All such sums and amounts so expended shall be deemed repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to have exercised reasonable care if such property is accorded treatment substantially equal to that which Lender accords its own property take any further or if Lender takes such future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended. (g) Debtors will defend the Collateral as Borrower shall request against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors agree to in writing provided that neither failure to comply with any such request nor any omission the requirements of all state and federal laws and requests of Agent in order for Agent to do any such act requested by Borrower shall be deemed have and maintain a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to valid and perfected first security interest and/or mortgage Lien in the Collateral in Lender’s custody. All risk, loss, damage or destruction of the Collateral shall be borne by BorrowerCollateral.

Additional Collateral Provisions. (a) It is expressly agreed by Borrower that, notwithstanding anything herein to Borrowers will defend the contrary, Borrower shall remain liable under each item Collateral against all Liens (other than Liens of Collateral consisting of a contract, instrument, permit or license to observe WFPC and perform all the conditions and obligations to be observed and performed by it thereunderPermitted Liens), and Lender shall have no obligation or liability whatsoever to any Person under any such contract, instrument, permit or license (between Borrower claims and any Person other than Lender) by reason demands of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the obligations of Borrower, (ii) to make any payment or inquiry, or (iii) to take any action of any kind to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled all Persons at any time claiming the same or times under any interest therein. Borrowers agree to comply with the requirements of all state and federal laws and requests of WFPC in order for WFPC to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral including, without limitation, executing such documents as WFPC may require to obtain control over all Deposit Accounts, Letter-of-Credit Rights and Investment Property. Furthermore, Borrowers shall promptly notify WFPC in writing upon incurring or pursuant otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of WFPC, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by WFPC to give WFPC a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. The definition of “Collateral” shall include any such Commercial Tort Claim, and the authorization given by Borrowers to WFPC in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such contract, instrument, permit or licenseCommercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the date hereof. (b) After In addition to the occurrence foregoing, Borrowers shall perform all further acts that may be lawfully and during reasonably required by WFPC to secure WFPC and effectuate the continuance intentions and objects of an Event of Defaultthis Agreement, Borrowerincluding, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Lender promptly upon Lender’s reasonable requestbut not limited to, the following reports: execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain Acknowledgment and Waiver Agreements. At the request of WFPC, Borrowers shall, immediately deliver (i) a reconciliation with execution by Borrowers of all Accounts; (ii) an aging of necessary documents or forms to reflect, implement or enforce all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Lender may request. Lender shall be permitted to observe and consult with Borrower’s accountants in the performance of these tasks. (c) For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to BorrowerLiens described herein thereon) to use, transfer, license or sublicense any Intellectual WFPC all certificates of title to note the Lien of WFPC thereon and all items of Property now owned, licensed to, or hereafter acquired by Borrower, and wherever the same may be located, and including in such license access for which WFPC must receive possession to all media in which any of the licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of any third Person; provided, that such license will terminate upon the termination of the Lender’s Liens in the Collateralobtain and/or maintain perfected security interests. (d) Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Lender shall be deemed to have exercised reasonable care if such property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such action with respect to the Collateral as Borrower shall request or agree to in writing provided that neither failure to comply with any such request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to the Collateral in Lender’s custody. All risk, loss, damage or destruction of the Collateral shall be borne by Borrower.