Affirmative Covenants of the Debtor. a. The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Party; b. The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral; c. The Debtor shall defend the Collateral against the claims and demands of all persons; d. The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instruments, documents and chattel paper which the Secured Party may reasonably specify; e. The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, in the reasonable opinion of the Secured Party, adversely affect the Secured Party’s rights or the first priority of its security interest in the Collateral; f. The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately reserved against in accordance with the generally accepted accounting principles; g. The Debtor shall cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new and shall make all repairs, replacements, additions and other improvements necessary to maintain the Equipment in such good condition; h. The Debtor shall maintain Inventory sufficient to meet the needs of its business; i. The Debtor shall preserve all beneficial Related Contracts; j. The Debtor shall take all commercially reasonable steps necessary to collect the Receivables; k. The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument; l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and shall make, execute and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a lienholder on all title certificates; m. Debtor shall keep accurate and complete records listing and describing the Collateral and, when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof; n. The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance or claim made or asserted against any of the Collateral, (ii) of any material change, substantial loss or depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunder; o. The Debtor shall give, execute, deliver and file or record in the proper governmental offices any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
Appears in 2 contracts
Samples: Security Agreement (VeriChip CORP), Security Agreement (Applied Digital Solutions Inc)
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, herein and the relocation of any of the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Party;. The Debtor will furnish to the Secured Party, from time to time, such statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral and the financing contemplated hereby as Secured Party may reasonably request, all in reasonable detail.
b. (b) The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral;.
c. (c) The Debtor shall defend the Collateral against the claims and demands of all persons;.
d. (d) The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instrumentsinstruments, documents and chattel paper which the Secured Party may reasonably specify;.
e. (e) The Debtor shall keep and maintain the Collateral in good condition and repair and permit the Secured Party and its agents to inspect the Collateral at any reasonable time during normal business hours. The Debtor shall be permitted to make normal replacement of its fixed assets.
(f) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, in the reasonable opinion of the Secured Party, adversely affect the Secured Party’s rights or the first priority of its security interest in the Collateral;.
f. (g) The Debtor shall pay promptly when due, due all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately adequately reserved against in accordance with the generally accepted accepted accounting principles;.
g. The Debtor shall cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new and shall make all repairs, replacements, additions and other improvements necessary to maintain the Equipment in such good condition;
h. The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. The Debtor shall assure that (ih) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and shall make, execute and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a lienholder on all title certificates;
m. Debtor shall keep accurate and complete records listing and describing the Collateral and, when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance or claim made or asserted against any of the CollateralCollateral, (ii) of any material change, substantial loss or depreciation depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility collectability of the Collateral or on the security interests created hereunder;.
o. (i) The Debtor shall give, execute, execute and deliver and the Secured Party shall file or record in the proper governmental offices offices, any instrument, paper or document, document including, but not limited to, one or more financing statements under the Uniform Commercial CodeUCC, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any the security interest interests granted pursuant heretoto this Agreement, or to enable the Secured Party to exercise or enforce any of its rights hereunder including, without limitation, upon the occurrence of an Event of a Default, the establishment of one or more lockbox accounts with the Secured Party or others who are, and in a manner which is, satisfactory to the Secured Party.
(j) The Debtor shall have the possession of the Collateral, except where expressly otherwise provided in this Agreement or where possession of the Collateral is required for perfection. Where the Collateral is in the possession of a third party, the Debtor will join with the Secured Party in notifying the third party of the Secured Party’s security interest and obtaining an acknowledgment in an authenticated record from the third party that it is holding the Collateral for the benefit of the Secured Party.
(k) In the event of a breach of any provision of this Agreement, the Debtor shall pay, or reimburse the Secured Party, in the amount of all expenses (including reasonable attorneys’ fees) incurred in any way in connection with the exercise, defense or assertion of any of its rights or interests hereunder; and, the enforcement of any provisions hereof or the management, preservation, use, operation, maintenance, collection, possession, disposition or enforcement of any of the Collateral (all such expenses shall be treated as Secured Obligations hereunder).
(l) Upon any failure of the Debtor to comply with its obligations above, the Secured Party may, at its option, and without affecting any of its other rights or remedies herein or as a secured party under the UCC, cause repairs or modifications to be made to the Collateral, the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a per annum rate computed on the same basis as the Secured Obligations.
(m) The Debtor covenants with the Secured Party as follows: (i) without providing at least thirty (30) days prior written notice to the Secured Party, the Debtor will not change its name, its place of business or, if more than one, its chief executive office, its mailing address or its organizational identification number, if it has one, (ii) if the Debtor does not have an organizational identification number and later obtains one, then the Debtor shall forthwith notify the Secured Party of such organizational identification number, and (iii) the Debtor will not change its type of organization or jurisdiction of organization or the state where it is located without providing at least thirty (30) days prior written notice to the Secured Party.
Appears in 1 contract
Samples: Inventory Financing and Security Agreement (Enviromart Companies, Inc.)
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Party;
b. (b) The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all persons;
d. (d) The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instrumentsinstruments, documents documents, and chattel paper which the Secured Party may reasonably specify;
e. (e) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s 's business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party adversely affect the Secured Party’s 's rights or the first priority of its security interest in the Collateral;
f. (f) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately reserved against in accordance with the generally accepted accounting principles;
g. (g) The Debtor shall cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new new, and shall make all repairs, replacements, additions additions, and other improvements necessary to maintain the Equipment in such good condition;
h. (h) The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. (i) The Debtor shall preserve all beneficial Related Contracts;
j. (j) The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. (k) The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount discount, or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and documents, agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. (l) The Debtor shall, with respect to any Collateral which consists of trucks, automobiles automobiles, or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and Debtor shall make, execute execute, and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a the first priority and sole lienholder on all title certificates;
m. (m) Debtor shall keep accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. (n) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the Collateral, (ii) of any material change, substantial loss or depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunder;
o. (o) The Debtor shall give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(p) The Debtor shall keep, and stamp or otherwise xxxx, any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of businessbusiness containing Collateral of a value of greater than $100,000.00, the closing of or, any existing places of business, the conduct of business under any names change in its legal name or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business incorporation, or any other act which would affect the financing statements filed by the Secured Party;
b. The (b) Upon the request of Secured Party, the Debtor shall continuously take all steps that are reasonably necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all personspersons which would have a Material Adverse Effect (as herein after defined);
d. The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instruments, documents and chattel paper which the Secured Party may reasonably specify;
e. (d) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s business's business except where failure to comply would not cause a Material Adverse Effect; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party materially and adversely affect the Secured Party’s 's rights or the first priority of its security interest in the CollateralCollateral (subject to Permitted Encumbrances);
f. (e) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge amounts need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, and (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is amounts are adequately reserved against in accordance with the generally accepted accounting principles;
g. (f) The Debtor shall cause the Equipment to be maintained and preserved in the same condition, reasonably good repair and working order as when new order, normal wear and tear excepted, and shall make all repairs, replacements, additions additions, and other improvements reasonably necessary to maintain the Equipment in such good condition, subject to obsolescence;
h. (g) The Debtor shall maintain Inventory reasonably sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect (h) Upon request of the Receivables;
k. The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and Debtor shall make, execute execute, and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a the first priority and sole lienholder on all title certificates;.
m. (i) Debtor shall keep materially accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing information regarding the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may reasonably request. Upon reasonable notice, Secured Party shall have the right right, at any time (but at reasonable intervals) during normal business hours and upon prior notice, to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. (j) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the CollateralCollateral in an amount in excess of $100,000.00, except for Permitted Encumbrances, (ii) of any material change, substantial loss or depreciation in the composition value of the CollateralCollateral taken as a whole, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunderCollateral;
o. (k) The Debtor shall upon the request of the Secured Party give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party reasonably may deem necessary or desirable request in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(l) The Debtor shall keep, and stamp or otherwise xxxx, any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Party;
b. (b) The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all persons;
d. (d) The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instrumentsinstruments, documents documents, and chattel paper which the Secured Party may reasonably specify;
e. (e) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s 's business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party adversely affect the Secured Party’s 's rights or the first priority of its security interest in the Collateral;
f. (f) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately reserved against in accordance with the generally accepted accounting principles;
g. (g) The Debtor shall cause the Equipment to be maintained and preserved in the same good condition, repair and working order as when new order, and shall make all repairs, replacements, additions additions, and other improvements necessary to maintain the Equipment in such good condition;
h. (h) The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. (i) The Debtor shall preserve all beneficial Related Contracts;
j. (j) The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. (k) The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount discount, or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and documents, agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. (l) The Debtor shall, with respect to any Collateral which consists of trucks, automobiles automobiles, or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and Debtor shall make, execute execute, and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a the first priority and sole lienholder on all title certificates;
m. (m) Debtor shall keep accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. (n) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the Collateral, (ii) of any material change, substantial loss or depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunder;
o. (o) The Debtor shall give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(p) The Debtor shall keep, and stamp or otherwise xxxx, any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Party;
b. (b) The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all persons;
d. (d) The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instrumentsinstruments, documents documents, and chattel paper which the Secured Party may reasonably specify;
e. (e) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s 's business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party adversely affect the Secured Party’s 's rights or the first priority of its security interest in the Collateral;
f. (f) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately reserved against in accordance with the generally accepted accounting principles;
g. (g) The Debtor shall cause the Equipment to be maintained and preserved in the same condition, good repair and working order as when new order, and shall make all repairs, replacements, additions additions, and other improvements necessary to maintain the Equipment in such good condition;
h. (h) The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. (i) The Debtor shall preserve all beneficial Related Contracts;
j. (j) The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. (k) The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount discount, or allowanceallowance (other than usual and customary discounts and allowances made in the ordinary course of business), (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured PartyParty (other than usual and customary, credits, discounts and allowances made in the ordinary course of business), (iii) all statements made and all unpaid balances appearing in the invoices, documents and documents, agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and shall make, execute and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a lienholder on all title certificates;
m. (l) Debtor shall keep accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. (m) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the Collateral, (ii) of any material change, substantial loss or depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunder;
o. (n) The Debtor shall give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(o) The Debtor shall keep, and stamp or otherwise mark, any of its documents, instruments and chattel paper anx xxs books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of businessbusinesscontaining Collateral of a value of greater than $100,000.00, the closing of or, any existing places of business, the conduct of business under any names change in its legal name or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business incorporation, , or any other act which would affect the financing statements filed by the Secured Party;
b. The (b) Upon the request of Secured Party, the Debtor shall continuously take all steps that are reasonably necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all personspersons which would have a Material Adverse Effect;
d. The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instruments, documents and chattel paper which the Secured Party may reasonably specify;
e. (d) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s business's business except where failure to comply would not cause a Material Adverse Effect; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party materially and adversely affect the Secured Party’s 's rights or the first priority of its security interest in the CollateralCollateral (subject to Permitted Encumbrances);
f. (e) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge amounts need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, and (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is amounts are adequately reserved against in accordance with the generally accepted accounting principles;
g. (f) The Debtor shall cause the Equipment to be maintained and preserved in the same condition, reasonably good repair and working order as when new order, normal wear and tear excepted, and shall make all repairs, replacements, additions additions, and other improvements reasonably necessary to maintain the Equipment in such good condition, subject to obsolecence;
h. (g) The Debtor shall maintain Inventory reasonably sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect (h) Upon request of the Receivables;
k. The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and Debtor shall make, execute execute, and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a the first priority and sole lienholder on all title certificates;.
m. (i) Debtor shall keep materially accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing information regarding the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may reasonably request. Upon reasonable notice, Secured Party shall have the right right, at any time (but at reasonable intervals) during normal business hours and upon prior notice, to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof.;
n. (j) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the CollateralCollateral in an amount in excess of $100,000.00, except for Permitted Encumbrances, (ii) of any material change, substantial loss or depreciation in the composition value of the CollateralCollateral taken as a whole, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunderCollateral;
o. (k) The Debtor shall upon the request of the Secured Party give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party reasonably may deem necessary or desirable request in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(l) The Debtor shall keep, and stamp or otherwise xxxx, any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of business, the closing of any existing places of business, the conduct of business under any names or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business or any other act business, which would affect the financing statements filed by the Secured Party;. The Debtor will furnish to the Secured Party from time to time such statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral, as such Secured Party may reasonably request, all in reasonable detail.
b. (b) The Debtor shall continuously take all steps that are necessary or prudent to protect the security interests of the Secured Party in the Collateral;.
c. (c) The Debtor shall defend the Collateral against the claims and demands of all persons;.
d. (d) The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instrumentsinstruments, documents and chattel paper which the Secured Party may reasonably specify;.
e. (e) The Debtor shall keep and maintain the Collateral in good condition and repair and adequately insured (as provided in the Loan Documents) and permit the Secured Party and its agents to inspect the Collateral at any reasonable time. The Debtor shall be permitted to make normal replacement of its fixed assets.
(f) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s 's business; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, in the reasonable opinion of the Secured Party, adversely affect the Secured Party’s 's rights or the first priority of its security interest in the Collateral;.
f. (g) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is adequately reserved against in accordance with the generally accepted accounting principles;.
g. The Debtor shall cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new and shall make all repairs, replacements, additions and other improvements necessary to maintain the Equipment in such good condition;
h. The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. The Debtor shall assure that (ih) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and shall make, execute and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a lienholder on all title certificates;
m. Debtor shall keep accurate and complete records listing and describing the Collateral and, when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance or claim made or asserted against any of the CollateralCollateral that is not permitted by this Agreement, (ii) of any material change, substantial loss or depreciation in the composition of the Collateral, and (iii) of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility collectability of the Collateral or on the security interests created hereunder;.
o. (i) The Debtor shall give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, including but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action action, which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and, including without limitation, upon the occurrence of an Event of a Default, the establishment of one or more lockbox accounts with the Secured Party or others who are, and in a manner which is, satisfactory to the Secured Party.
(j) The Debtor shall keep, and stamp or otherwise mark, xxy of its documents, instruments and chattel paper and its books relating to any of the Collateral in such manner as the Secured Party may reasonably require.
(k) The Debtor shall pay, or reimburse the Secured Party, in the amount of all expenses (including reasonable fees and expenses of attorneys, experts and agents) incurred in any way in connection with the exercise, defense or assertion of any of its rights or interests hereunder, the enforcement of any provisions hereof or the management, preservation, use, operation, maintenance, collection, possession, disposition or enforcement of any of the Collateral (all such expenses shall be treated as Secured Obligations hereunder).
(l) Upon any failure of the Debtor to comply with its obligations above, the Secured Party may, at its option, and without affecting any of its other rights or remedies herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral, the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a per annum rate computed on the same basis as the Secured Obligations.
(m) The Debtor hereby assigns to the Secured Party any and all moneys which may become due and payable under any policy insuring the Collateral, including return of unearned premiums, and directs any such insurance company to make payment directly to the Secured Party, and authorizes the Secured Party to apply such moneys in payment on account of the indebtedness secured hereby, whether or not due, or, at the sole option of the Secured Party, toward replacement of the Collateral, and to remit any surplus to the Debtor.
Appears in 1 contract
Samples: Security Agreement (Nashua Corp)
Affirmative Covenants of the Debtor. a. (a) The Debtor shall promptly notify and provide the Secured Party with a complete description of the opening of any new places of businessbusiness containing Collateral of a value of greater than $50,000.00, the closing of or, any existing places of business, the conduct of business under any names change in its legal name or through any entities other than those set forth herein, the relocation of any of the Collateral to any new place of business incorporation, or any other act which would affect the financing statements filed by the Secured Party;
b. The (b) Upon the request of Secured Party, the Debtor shall continuously take all steps that are reasonably necessary or prudent to protect the security interests of the Secured Party in the Collateral;
c. (c) The Debtor shall defend the Collateral against the claims and demands of all personspersons which would have a Material Adverse Effect (as herein after defined);
d. The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instruments, documents and chattel paper which the Secured Party may reasonably specify;
e. (d) The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation of the Debtor’s businessbusiness except where failure to comply would not cause a Material Adverse Effect; provided, however, that the Debtor may contest any governmental regulation in any reasonable manner which shall not, not in the reasonable opinion of the Secured Party, Party materially and adversely affect the Secured Party’s rights or the first priority of its security interest in the Collateral;Collateral (subject to Permitted Encumbrances); Citizens Bank New Hampshire Security Agreement – Micronetics et al.
f. (e) The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge amounts need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, and (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iii) such charge is amounts are adequately reserved against in accordance with the generally accepted accounting principles;
g. (f) The Debtor shall cause the Equipment to be maintained and preserved in the same condition, reasonably good repair and working order as when new order, normal wear and tear excepted, and shall make all repairs, replacements, additions additions, and other improvements reasonably necessary to maintain the Equipment in such good condition, subject to obsolescence;
h. (g) The Debtor shall maintain Inventory reasonably sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. The Debtor shall assure that (ih) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrument;
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles automobiles, or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and Debtor shall make, execute execute, and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a the first priority and sole lienholder on all title certificates;.
m. (i) Debtor shall keep materially accurate and complete records listing and describing the Collateral andCollateral, and when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing information regarding the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates days the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may reasonably request. Upon reasonable notice, Secured Party shall have the right right, at any time (but at reasonable intervals) during normal business hours and upon prior notice, to inspect the Collateral and to audit and make copies of any records or other writings that which relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. (j) The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) of any lien, security interest, encumbrance encumbrance, or claim made or asserted against any of the CollateralCollateral in an amount in excess of $50,000.00, except for Permitted Encumbrances, (ii) of any material change, substantial loss or depreciation in the composition value of the CollateralCollateral taken as a whole, and (iii) of the occurrence of any other material adverse effect Material Adverse Effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunder;Collateral; Citizens Bank New Hampshire Security Agreement – Micronetics et al.
o. (k) The Debtor shall upon the request of the Secured Party give, execute, deliver and file or record in the proper governmental offices offices, any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party Party, or take any action which the Secured Party reasonably may deem necessary or desirable request in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; and
(l) The Debtor shall keep, and stamp or otherwise xxxx, any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as the Secured Party may reasonably require.
Appears in 1 contract
Samples: Security Agreement (Micronetics Inc)
Affirmative Covenants of the Debtor. a. The Debtor shall promptly notify Subject to the terms and provide conditions hereof, for the Secured Party with a complete description duration of the opening of any new places of businessSupport Period, the closing Debtor shall, as to the Estate Claims Settlement and the Plan:
(a) propose and pursue a Plan and seek and obtain entry of any existing places of businessone or more orders that contain the following provisions, findings, and orders (the “Findings and Orders”):
(i) the Bankruptcy Court has determined that the Plan, the conduct of business under any names or through any entities other than those set forth hereinPlan Documents, and the relocation of any of Confirmation Order shall be binding on all parties in interest to the Collateral to any new place of business or any other act which would affect the financing statements filed by the Secured Partyextent provided therein;
b. The Debtor shall continuously take all steps (ii) the Bankruptcy Court has determined that the proposed governance for the Settlement Trust is appropriate, and that the TDPs are necessary or prudent fair and reasonable based on the evidentiary record offered to protect the security interests of Bankruptcy Court, and proposed in good faith;
(iii) the Secured Party Bankruptcy Court has determined that the Estate Claims Settlement is a fair, equitable, and reasonable compromise, in the Collateral;
c. The Debtor shall defend the Collateral against the claims and demands of all persons;
d. The Debtor shall deliver and pledge to the Secured Party, endorsed or accompanied by instruments of assignment or transfer satisfactory to the Secured Party, any Instruments, documents and chattel paper which the Secured Party may reasonably specify;
e. The Debtor shall comply, in all material respects, with all governmental regulations applicable to the Collateral or any part thereof or to the operation best interests of the Debtor’s businessestate, the product of good faith, arms’-length negotiations, and satisfies all applicable requirements of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), including Bankruptcy Rule 9019;
(iv) the Bankruptcy Court has determined that the Estate Claims Settlement is a good faith settlement that bars any Cause of Action by a non-Released Party against any Released Party for contribution, for indemnification, or otherwise seeking to recover any amounts paid by or awarded against that non-Released Party and paid or awarded to any holder of a Claim by way of settlement, judgment, or otherwise on any Claim that would be a Released Claim were such non-Released Party a Released Party to the extent that a good-faith settlement has such an effect under applicable law;
(v) the Bankruptcy Code authorizes the Insurance Assignment by Carrier and the Debtor to the Settlement Trust as provided in the Plan, notwithstanding any terms of any policies or provisions of non-bankruptcy law that prohibit the delegation, assignment, or other transfer of such rights, and the Bankruptcy Court has determined that the Settlement Trust is a proper defendant for all holders of all applicable Claims against the Debtor and/or Carrier that are settled pursuant to the Estate Claims Settlement Agreement or the MDL Class Action Settlement Agreements to assert liability to trigger and pursue such insurance rights and that the Settlement Trust is entitled to pursue insurance coverage for all other AFFF Claims asserted against Carrier or the Debtor, consistent with the Insurance Assignment and the agreement on allocation set forth in the section entitled “Insurance” in the Settlement Term Sheet;
(vi) the Bankruptcy Court has determined that the Plan is proposed in good faith and is sufficient to satisfy the requirements of section 1129(a)(3) of the Bankruptcy Code;
(vii) the Bankruptcy Court has determined that the releases set forth in the Estate Claims Settlement Agreement and Plan are an integral component of the Estate Claims Settlement and that the Estate Claims Settlement is fair, equitable, reasonable, in the best interests of the Debtor’s estate, and consistent with all applicable provisions of the Bankruptcy Code;
(viii) the Bankruptcy Court has determined that the injunctions set forth in the Plan, including the Channeling Injunction and Insurance Entity Injunction, are essential to the Plan and the Estate Claims Settlement, appropriately tailored to implement the applicable provisions of the Estate Claims Settlement and the Plan, and consistent with all applicable provisions of the Bankruptcy Code;
(ix) the Bankruptcy Court has entered an order approving the Cooperation Agreement; and
(x) the Bankruptcy Court has determined that it may properly, and upon the Effective Date shall, retain jurisdiction over matters arising in, under, and related to the Chapter 11 Case, including the Plan and Plan Documents and shall retain non-exclusive jurisdiction over any Insurance Action including the Adversary Proceeding;
(b) support, implement, and consummate the Estate Claims Settlement and all transactions contemplated under this Agreement, including incorporating the Estate Claims Settlement into the applicable Definitive Documents;
(c) oppose any objections filed with the Bankruptcy Court to the Estate Claims Settlement, the Plan, or any other Definitive Document;
(d) oppose any findings that are inconsistent with the Estate Claims Settlement or that may operate to reduce or eliminate the benefits of the Insurance Assignment;
(e) to the extent any legal or structural impediment arises that would prevent, hinder, impede, or delay the consummation of the Estate Claims Settlement or the confirmation of the Plan, take all steps necessary and desirable to address any such impediment, and negotiate in good faith any appropriate additional or alternative provisions or agreements to address any such impediment that are consistent with the Estate Claims Settlement;
(f) oppose and timely file a formal objection to any motion, application, pleading, adversary proceeding, or cause of action filed with the Bankruptcy Court seeking relief (i) that is materially inconsistent with this Agreement or any Definitive Document, (ii) that would, or would be reasonably expected to, frustrate the purposes of this Agreement or any Definitive Document, including by preventing the consummation of the Plan, (iii) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (iv) converting the Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code, (v) dismissing the Chapter 11 Case, or (vi) modifying or terminating the Debtor’s exclusive right to file and/or solicit acceptances on a plan of reorganization, as applicable;
(g) timely file a formal objection or opposition to any motion, application, or adversary proceeding or other action or proceeding asserting any Estate Cause of Action;
(h) provide draft copies of all material pleadings and documents that the Debtor intends to file with or submit to the Bankruptcy Court or to any governmental authority (including any regulatory authority), as applicable, to implement or disclose the Estate Claims Settlement, and draft copies of all press releases that the Debtor intends to issue regarding this Agreement or the Estate Claims Settlement to counsel for each of Carrier, the Committee, and the MDL PEC Co-Leads, as applicable, at least two (2) Business Days before the date when the Debtor intends to file or publicize such pleading or other document, unless such advance notice is impossible or impracticable under the circumstances, in which case the Debtor shall use reasonable efforts to notify telephonically or by email counsel to each of Carrier, the Committee, and the MDL PEC Co-Leads to advise them as such and, in any event, shall provide drafts as soon as reasonably practicable; provided, however, that nothing in this Agreement shall waive any privilege that any Party holds individually (or which the Debtor may contest any governmental regulation in any reasonable manner which shall not, in the reasonable opinion of the Secured Party, adversely affect the Secured Party’s rights Parties (or the first priority of its security interest in the Collateral;
f. The Debtor shall pay promptly when due, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of its income or profits therefrom, as well as all claims of any kind, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, (ii) such proceedings do not involve any danger of the sale, forfeiture or loss of any of the Collateral or any interest therein; and (iiithem) such charge is adequately reserved against in accordance with the generally accepted accounting principles;
g. The Debtor shall cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new and shall make all repairs, replacements, additions and other improvements necessary to maintain the Equipment in such good condition;
h. The Debtor shall maintain Inventory sufficient to meet the needs of its business;
i. The Debtor shall preserve all beneficial Related Contracts;
j. The Debtor shall take all commercially reasonable steps necessary to collect the Receivables;
k. The Debtor shall assure that (i) no Receivable is or shall be subject to any defense, offset, counterclaim, discount or allowance, (ii) no agreement under which any deduction, discount, credit or allowance of any kind may be granted or allowed shall have been or shall thereafter be made by Debtor with any account party held jointly but could not waive without the consent of Secured Party, (iii) all statements made and all unpaid balances appearing in the invoices, documents and agreements relating to each Receivable are and shall be true, genuine, and correct in all respects, and (iv) no Receivable shall be converted to a note or other instrument unless the same shall be delivered to the possession of the Secured Party within ten (10) days of the date of execution of such note or instrumentanother Entity);
l. The Debtor shall, with respect to any Collateral which consists of trucks, automobiles or other motor vehicles, or any other Collateral required to be titled, deliver all titles thereto to the Secured Party to be held by the Secured Party and shall make, execute and deliver any and all applications, and take such other action to assure that the Secured Party is listed of record as a lienholder on all title certificates;
m. Debtor shall keep accurate and complete records listing and describing the Collateral and, when requested by Secured Party, Debtor shall give Secured Party a certificate listing and describing the Collateral and setting forth the total value of the Inventory, the total value of the Equipment, the amount of the Receivables designating how many dates the Receivables are from the date of invoice, the face value of any instruments, and any other information Secured Party may request. Upon reasonable notice, Secured Party shall have the right at any time to inspect the Collateral and to audit and make copies of any records or other writings that relate to the Collateral or the general financial condition of Debtor. Bank shall use its best efforts to commence such inspections during reasonable business hours. Secured Party may remove such records and writings for the purpose of having copies made thereof;
n. The Debtor shall advise the Secured Party promptly, in reasonable detail, (i) inform counsel to each of any lienCarrier, security interestthe Committee, encumbrance and the MDL PEC Co-Leads within two (2) Business Days after becoming aware (I) that a Non-Debtor Termination Event has occurred and is continuing or claim made or asserted against any of the Collateral, (iiII) of any material change, substantial loss event that would reasonably be expected to materially impede or depreciation in prevent the composition implementation of the Collateral, and (iii) Estate Claims Settlement or confirmation of the occurrence of any other material adverse effect on the aggregate value, enforceability or collectibility of the Collateral or on the security interests created hereunderPlan;
o. The (j) move to stay the Adversary Proceeding or support any motion to stay the Adversary Proceeding filed by a Non-Debtor shall give, execute, deliver and file or record in the proper governmental offices any instrument, paper or document, including, but not limited to, one or more financing statements under the Uniform Commercial Code, reasonably satisfactory to the Secured Party or take any action which the Secured Party may deem necessary or desirable in order to create, preserve, perfect, extend, continue, modify, terminate or otherwise effect any security interest granted pursuant hereto, or to enable the Secured Party to exercise or enforce any of its rights hereunder; andSettlement Party.
Appears in 1 contract
