Agreements of the Companies. Each Company shall: (a) keep all its Inventory and other Goods, except for no more than $12,000,000 of Equipment and Inventory in transit and no more than $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers or unless the Agent shall otherwise consent in writing, at one or more of its own premises (as shown on Schedule III hereto) or at one or more of the premises listed on Schedule IV hereto; provided, however, that (i) so long as no Default shall have occurred and be continuing, each Company may designate additional premises for inclusion on Schedule IV hereto upon thirty (30) days' advance written notice to the Agent and (ii) in the case of the premises listed on Schedule IV hereto from time to time, such Company's Inventory and other Goods shall be kept separate from the Inventory and other Goods of those Persons (other than another Company) using such premises and shall be clearly and conspicuously designated as being such Company's sole property (for example, by posting signs or by affixing such Company's name on its Inventory and other Goods); (b) furnish the Agent such information concerning each Company, the Collateral and the Persons obligated on the Accounts as the Agent may from time to time reasonably request; (c) defend each Company's title to the Collateral against all Persons and against all claims and demands whatsoever; (d) do all acts reasonably necessary to maintain, preserve and protect all Collateral, keep all Collateral in good condition and repair (subject to normal wear and tear), and prevent any waste or unusual or unreasonable depreciation thereof; (e) comply in all material respects with all laws, rules and regulations relating to, and promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against, the ownership, operation, possession, maintenance or use of the Collateral; provided, however, that such Company shall not be required to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, the validity of which is being contested by such Company in good faith by appropriate proceedings so long as forfeiture of any part of the Collateral will not result from the failure of such Company to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, during the period of such contest and such Company maintains adequate reserves in accordance with GAAP in connection with such contest; (f) permit the Agent and designees of the Agent, from time to time, (to the extent not prohibited by law) to inspect at reasonable times the Inventory and Equipment, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Company and will, upon request of the Agent, deliver to the Agent all of such records and papers which pertain to the Collateral and all Persons obligated with respect thereto; (g) upon request of the Agent, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the Collateral), a notation, in form satisfactory to the Agent, of the Security Interests created hereby, and give all appropriate notices of assignment and take all other appropriate actions in accordance with the Federal Assignment of Claims Act (31 U.S.C. 3727), as amended from time to time, with respect to Collateral subject thereto; (h) not sell, lease, assign, license, sublicense, abandon or otherwise dispose of, or create or permit to exist any Security Interest on any Collateral to or in favor of anyone other than the Agent; provided, however, that, if no Default shall have occurred and be continuing, such Company may engage in transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9 of the Credit Agreement; (i) at all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 7.1.4 of the Credit Agreement and, if the Agent so requests, deposit with the Agent originals or certified copies of the relevant policies and certificates of insurance; (j) furnish to the Agent notice in writing as soon as possible and in any event not later than thirty (30) days prior to the occurrence from time to time of (i) any change in the locations of any part of the Collateral from the locations shown in Schedules III and IV hereto, except for no more than $12,000,000 of Equipment and Inventory in transit and $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers, (ii) any change in the location of such Company's chief executive office, and (iii) any change in the name of such Company or the name under or by which it conducts its business, each of such notices also to contain evidence that such Company has taken all action required or reasonably desirable to maintain and preserve the Security Interest in favor of the Agent on the Collateral, free and clear of any other Security Interest or encumbrance whatsoever; (k) reimburse the Agent for all reasonable expenses, including attorneys' fees and legal expenses and reasonable expenses of any repairs to realty or other property to which any Collateral may be affixed or be a part, incurred by the Agent in seeking to collect or enforce any rights under or with respect to the Collateral, in seeking to collect the Notes and all other Obligations, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by such Company at a rate per annum equal to the Default Rate; (l) either itself or through licensees, unless such Company shall reasonably determine that a Trademark is of negligible economic value to such Company, (i) continue to use each Trademark on each and every trademark class of goods with which it is associated (as reflected in its catalogs, brochures and price lists) in order to maintain each Trademark in full force free from any claim of abandonment for non-use, (ii) maintain the quality of products and services offered under each Trademark, (iii) employ each Trademark with the appropriate notice of application or registration, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of any Trademark, (v) not use any Trademark except for the uses for which registration or application for registration of such Trademark has been made, and (vi) not (and not permit any licensee or sublicensee thereto to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated; (m) at its sole expense, (i) without any request by the Agent, immediately deliver or cause to be delivered to the Agent, in due form for transfer (i.e., endorsed in blank or accompanied by duly executed undated blank stock or bond powers in form and substance satisfactory to the Agent), all Securities, Chattel Paper with a face amount of or requiring payment in the aggregate amount of $1,000,000 or more, Instruments with a face amount in excess of $500,000 (other than checks received in payment for such Company's goods or services in the ordinary course of business that are collected or converted to cash within two weeks after the receipt thereof) and Documents (other than Documents with a value of less than $1,000,000 or that are not held by such Company for more than 30 days), if any, at any time representing all or any of the Collateral, (ii) at the Agent's request, cause the Agent's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to the Agent each such certificate of title, and (iii) forthwith, execute and deliver or cause to be executed and delivered to the Agent, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by the Agent) such assignments (including, without limitation, assignments of life insurance with a cash value of $1,000,000 or more), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as may from time to time be necessary or desirable to establish and maintain to the satisfaction of the Agent a valid perfected lien on and security interest in all assets of such Company now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to secure payment and performance of the Obligations; and (n) at the Agent's request after the occurrence and during the continuance of a Default, transfer all or any part of the Collateral into the name of the Agent or its nominee, with or without disclosing that such Collateral is subject to the Security Interest hereunder.
Appears in 1 contract
Samples: Dollar Note (Bairnco Corp /De/)
Agreements of the Companies. Each Company shallof the Companies agrees with the several Underwriters as follows:
(a) keep all its Inventory and other Goods, except for no more than $12,000,000 of Equipment and Inventory in transit and no more than $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers or unless the Agent shall otherwise consent in writingIf, at one the time this Agreement is executed and delivered, it is necessary for the Registration Statement or more of its own premises (as shown on Schedule III hereto) or at one or more a post-effective amendment thereto to be declared effective before the offering of the premises listed on Schedule IV hereto; provided, however, that (i) so long as no Default shall have occurred and be continuing, each Company Securities may designate additional premises for inclusion on Schedule IV hereto upon thirty (30) days' advance written notice to the Agent and (ii) in the case of the premises listed on Schedule IV hereto from time to time, such Company's Inventory and other Goods shall be kept separate from the Inventory and other Goods of those Persons (other than another Company) using such premises and shall be clearly and conspicuously designated as being such Company's sole property (for example, by posting signs or by affixing such Company's name on its Inventory and other Goods);
(b) furnish the Agent such information concerning each Companycommence, the Collateral Operating Partnership and the Persons obligated on General Partner will endeavor to cause the Accounts as the Agent may from time Registration Statement or such post-effective amendment to time reasonably request;
(c) defend each Company's title to the Collateral against all Persons and against all claims and demands whatsoever;
(d) do all acts reasonably necessary to maintain, preserve and protect all Collateral, keep all Collateral in good condition and repair (subject to normal wear and tear), and prevent any waste or unusual or unreasonable depreciation thereof;
(e) comply in all material respects with all laws, rules and regulations relating to, and promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against, the ownership, operation, possession, maintenance or use of the Collateral; provided, however, that such Company shall not be required to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, the validity of which is being contested by such Company in good faith by appropriate proceedings so long as forfeiture of any part of the Collateral will not result from the failure of such Company to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, during the period of such contest and such Company maintains adequate reserves in accordance with GAAP in connection with such contest;
(f) permit the Agent and designees of the Agent, from time to time, (to the extent not prohibited by law) to inspect at reasonable times the Inventory and Equipment, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Company and will, upon request of the Agent, deliver to the Agent all of such records and papers which pertain to the Collateral and all Persons obligated with respect thereto;
(g) upon request of the Agent, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the Collateral), a notation, in form satisfactory to the Agent, of the Security Interests created hereby, and give all appropriate notices of assignment and take all other appropriate actions in accordance with the Federal Assignment of Claims Act (31 U.S.C. 3727), as amended from time to time, with respect to Collateral subject thereto;
(h) not sell, lease, assign, license, sublicense, abandon or otherwise dispose of, or create or permit to exist any Security Interest on any Collateral to or in favor of anyone other than the Agent; provided, however, that, if no Default shall have occurred and be continuing, such Company may engage in transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9 of the Credit Agreement;
(i) at all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 7.1.4 of the Credit Agreement and, if the Agent so requests, deposit with the Agent originals or certified copies of the relevant policies and certificates of insurance;
(j) furnish to the Agent notice in writing become effective as soon as possible and will advise the Underwriters and counsel for the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Operating Partnership and the General Partner will advise the Underwriters and counsel for the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any event jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the financial position, business, prospects, or results of operations of any of the Companies, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not later than thirty misleading, or of the necessity to amend or supplement the Preliminary Prospectus or the Final Prospectus (30as then amended or supplemented) days to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Operating Partnership and the General Partner will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Operating Partnership and the General Partner will furnish to the Underwriters, at the Underwriters' request and without charge, (i) three signed copies and five conformed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement, (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Underwriters may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as the Underwriters may request, and (iv) such number of copies of the exhibits to the Incorporated Documents as the Underwriters may request.
(d) Neither the Operating Partnership nor the General Partner will file any amendment to the Registration Statement or make any amendment or supplement to the Preliminary Prospectus or the Final Prospectus or, prior to the occurrence end of the period of time referred to in the second sentence in paragraph (f) below, file any document which, upon filing becomes an Incorporated Document, of which the Underwriters and counsel for the Underwriters shall not previously have been advised or to which, after the Underwriters and counsel for the Underwriters shall have received a copy of the document proposed to be filed, the Underwriters shall reasonably object; provided that the Underwriters' consent shall not be unreasonably withheld or delayed.
(e) Prior to the execution and delivery of this Agreement, the Operating Partnership and the General Partner have delivered to the Underwriters, without charge, in such quantities as the Underwriters have requested, copies of the Preliminary Prospectus. The Operating Partnership and the General Partner consent to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Final Prospectus, of the Preliminary Prospectus so furnished by the Operating Partnership and the General Partner.
(f) The Operating Partnership will cause the Final Prospectus to be filed pursuant to, and in compliance with, Rule 424(b). As soon after the execution and delivery of this Agreement as possible and thereafter from time to time of (i) any change for such period as in the locations opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Operating Partnership and the General Partner will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Final Prospectus (and of any part amendment or supplement thereto) as the Underwriters may reasonably request. The Operating Partnership and the General Partner consent to the use of the Collateral from Preliminary Prospectus or the locations shown Final Prospectus (and of any amendment or supplement thereto) in Schedules III accordance with the provisions of the Act and IV heretowith the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, except both in connection with the offering and sale of the Securities and for no more than $12,000,000 such period of Equipment and Inventory time thereafter as the Preliminary Prospectus or the Final Prospectus is required by the Act to be delivered in transit and $2,000,000 connection with sales by any Underwriter or dealer. If during such period of Equipment and Inventory located at third party warehouses leased by Kasco territory managers, (ii) time any change event shall occur that in the location judgment of such Company's chief executive office, and (iii) any change the Operating Partnership or the General Partner or in the name opinion of such Company counsel for the Underwriters is required to be set forth in the Preliminary Prospectus or the name under Final Prospectus (as then amended or by which it conducts its businesssupplemented) or should be set forth therein in order to make the statements therein, each of such notices also to contain evidence that such Company has taken all action required or reasonably desirable to maintain and preserve in the Security Interest in favor light of the Agent on the Collateralcircumstances under which they were made, free and clear of any other Security Interest not misleading, or encumbrance whatsoever;
(k) reimburse the Agent for all reasonable expenses, including attorneys' fees and legal expenses and reasonable expenses of any repairs to realty or other property to which any Collateral may be affixed or be a part, incurred by the Agent in seeking to collect or enforce any rights under or with respect to the Collateral, in seeking to collect the Notes and all other Obligations, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by such Company at a rate per annum equal to the Default Rate;
(l) either itself or through licensees, unless such Company shall reasonably determine that a Trademark is of negligible economic value to such Company, (i) continue to use each Trademark on each and every trademark class of goods with which if it is associated necessary to supplement or amend the Preliminary Prospectus or the Final Prospectus (as reflected in its catalogsor to file under the Exchange Act any document which, brochures and price listsupon filing, becomes an Incorporated Document) in order to maintain each Trademark in full force free from any claim of abandonment for non-use, (ii) maintain the quality of products and services offered under each Trademark, (iii) employ each Trademark comply with the appropriate notice of application or registration, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of any Trademark, (v) not use any Trademark except for the uses for which registration or application for registration of such Trademark has been made, and (vi) not (and not permit any licensee or sublicensee thereto to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated;
(m) at its sole expense, (i) without any request by the Agent, immediately deliver or cause to be delivered to the Agent, in due form for transfer (i.e., endorsed in blank or accompanied by duly executed undated blank stock or bond powers in form and substance satisfactory to the Agent), all Securities, Chattel Paper with a face amount of or requiring payment in the aggregate amount of $1,000,000 or more, Instruments with a face amount in excess of $500,000 (other than checks received in payment for such Company's goods or services in the ordinary course of business that are collected or converted to cash within two weeks after the receipt thereof) and Documents (other than Documents with a value of less than $1,000,000 or that are not held by such Company for more than 30 days), if any, at any time representing all Act or any of other law, the CollateralOperating Partnership and the General Partner will forthwith prepare and, (ii) at the Agent's request, cause the Agent's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to the Agent each such certificate of title, and (iii) forthwith, execute and deliver or cause to be executed and delivered to the Agent, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by the Agent) such assignments (including, without limitation, assignments of life insurance with a cash value of $1,000,000 or more), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as may from time to time be necessary or desirable to establish and maintain to the satisfaction of the Agent a valid perfected lien on and security interest in all assets of such Company now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to secure payment and performance of the Obligations; and
(n) at the Agent's request after the occurrence and during the continuance of a Default, transfer all or any part of the Collateral into the name of the Agent or its nominee, with or without disclosing that such Collateral is subject to the Security Interest hereunderprovisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Operating Partnership or the General Partner and the several Underwriters agree that the Preliminary Prospectus or the Final Prospectus should be amended or supplemented, the Operating Partnership and the General Partner, if requested by the Underwriters, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Operating Partnership and the General Partner will cooperate with the Underwriters and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Operating Partnership be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Operating Partnership and the General Partner will make generally available to security holders of the Operating Partnership a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a)
Appears in 1 contract
Agreements of the Companies. Each Subject to the terms and conditions hereof, and for so long as no Company shallTermination Event shall have occurred, and except as the Required Participating Noteholders may expressly release the Companies in writing from any of the following obligations:
(a) keep Subject to the terms and conditions of Section 22, the Companies shall provide to the Participating Noteholders or their professional advisors such information and due diligence materials as the Participating Noteholders reasonably request to evaluate the transactions contemplated by this Agreement, and shall cause their management and advisors to meet with the Participating Noteholders and their professional advisors at reasonable times upon request of the Participating Noteholders, including, on an advisors’ eyes only basis, information required to be provided to the administrative agent under the XXXX RBL pursuant to paragraph 3(f) of the interim cash collateral order.
(b) The Companies agree (i) to prepare the Plan Documents, (ii) to provide draft copies of the Plan Documents and material “first-day” motions to the Participating Noteholders or their professional advisors within a reasonable amount of time prior to the launch of the Solicitation, the Petition Date, or the date the Companies plan to file such documents with the Bankruptcy Court, as applicable, and (iii) that they shall, except in circumstances where it is not reasonably practicable or prudent to do so, provide draft copies of all its Inventory other material motions, applications, and other Goodsdocuments the Companies intend to file with the Bankruptcy Court to counsel for the Participating Noteholders reasonably in advance of filing such documents with the Bankruptcy Court, except for no more than $12,000,000 and shall consult in good faith with the Participating Noteholders and their counsel regarding the form and substance of Equipment any such proposed filings.
(c) The Companies agree to use commercially reasonable efforts to (i) complete the Restructuring under the Plan Documents; (ii) take all reasonably necessary and Inventory appropriate actions in transit and no more than $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers or unless the Agent shall otherwise consent in writing, at one or more of its own premises (as shown on Schedule III hereto) or at one or more furtherance of the premises listed on Schedule IV heretoRestructuring and all other actions contemplated under this Agreement, the Term Sheet, or the Plan Documents; and (iii) not take any actions inconsistent with this Agreement, the Term Sheet, or the Plan Documents.
(d) The Companies shall (i) prior to the Petition Date, fund a retainer of $200,000 to fund the reasonable, actual, and documented fees and expenses to be incurred by the Participating Noteholders in connection with this Agreement and the transactions contemplated thereby from the Petition Date through the date of entry of the Assumption Order by the Bankruptcy Court; (ii) prior to the Petition Date, pay in the ordinary course in full such reasonable, actual, and documented fees and expenses; and (iii) as long as this Agreement remains in effect, continue to promptly pay the reasonable, actual, and documented fees and expenses of the Participating Noteholders from and after the commencement (and through the conclusion) of the Bankruptcy Cases and through the earlier of (A) the termination of this Agreement, however caused, and (B) the Effective Date; provided, however, that that the Companies’ obligation pursuant to this Section 6(d) shall be limited to one financial advisor; one primary counsel; one local counsel for Delaware; and, with the consent of the Companies, not to be unreasonably withheld, one additional counsel for each relevant jurisdiction (other than Delaware) and legal specialty.
(e) The Plan shall include comprehensive indemnification and mutual release provisions, as set forth in Section 8 hereof.
(f) The Companies shall file, within one Business Day of the Petition Date, a motion seeking entry of an order authorizing the XXXX Companies to use cash collateral, which motion shall be in form and substance reasonably acceptable to the Participating Noteholders. The Companies shall use commercially reasonable efforts to obtain entry of an interim cash collateral order as soon as possible, but in no event later than five Business Days after the Petition Date.
(g) The Companies will use commercially reasonable efforts to finalize the drafting of the Backstop, the Plan, Disclosure Statement, and related documents, as soon as reasonable practicable, but in no event later than the dates “Milestones”, and to take all such actions as may be necessary or appropriate to obtain confirmation of the Plan.
(h) The Companies shall use their commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by the Plan at the earliest date practicable.
(i) The Companies shall not, directly or indirectly seek, solicit, support, pursue, propose, negotiate, or encourage the solicitation, pursuit, proposal, support, or negotiation of any Alternative Transaction or plan of reorganization that is inconsistent with the Plan; provided, however, that notwithstanding anything set forth herein, it is understood and agreed that the Companies and the Participating Noteholders shall be entitled to entertain discussions with the TPC Noteholder, Caliber, and the Caliber Investor (together, the “Approved Parties”), concerning the Approved Parties’ interest in participating in the Plan or amendments to the Plan; provided further, however, that (i) so long as no Default the Companies shall have occurred provide reasonable and be continuing, each Company may designate additional premises for inclusion on Schedule IV hereto upon thirty (30) days' advance written notice detailed updates to the Agent Participating Noteholders on the status of such discussions to the extent such discussions occur between the Companies and any Approved Party; (ii) the Participating Noteholders shall be entitled to participate in such discussions; (iii) any amendments to the Plan that arise out of such discussions shall be reasonably acceptable to the Required Participating Noteholders (subject, for the avoidance of doubt, to the rights of each Participating Noteholder under Section 14); and (iv) in the case event the Participating Noteholders reasonably conclude that such discussions are not in the best interests of the premises listed on Schedule IV hereto from time timely pursuit of consummation of the Plan (including any amendments thereto that must be acceptable to timethem in accordance with clause (iii) above), the Participating Noteholders may notify the Companies, at which point the Companies will immediately (A) terminate such Company's Inventory discussions or (B) elect to exercise their rights under Section 10(e).
(j) The Companies shall not file any motion or pleading with the Bankruptcy Court that is inconsistent in any material respect with this Agreement or the Plan without the prior consent of the Participating Noteholders.
(k) Except as otherwise contemplated by this Agreement and other Goods shall be kept separate the Term Sheet, from the Inventory and other Goods of those Persons (other than another Company) using such premises and shall be clearly and conspicuously designated as being such Company's sole property (for example, by posting signs or by affixing such Company's name on its Inventory and other Goods);
(b) furnish date hereof through the Agent such information concerning each CompanyEffective Date, the Collateral Companies shall use commercially reasonable efforts to (i) conduct their businesses in the ordinary course of business and preserve the Persons obligated on material business relationships with customers, suppliers, distributors, and others with whom the Accounts as Companies deal in the Agent may from time to time reasonably request;
ordinary course of business; (cii) defend each Company's title to maintain the Collateral against all Persons and against all claims and demands whatsoever;
(d) do all acts reasonably necessary to maintain, preserve and protect all Collateral, keep all Collateral Companies’ assets in good working condition and repair (subject to normal wear and teartear excepted), pay expenses and prevent any waste or unusual or unreasonable depreciation thereof;
payables, and collect accounts receivable; and (eiii) comply in all material respects with all lawslaws and contracts, rules and regulations maintain all material permits relating toto the Companies’ businesses, and promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against, applicable taxes that the ownership, operation, possession, maintenance or use of the Collateral; provided, however, that such Company shall not be Companies are required to comply with pay (taking into account any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, the validity of which is being contested by such Company in good faith by appropriate proceedings so long as forfeiture of any part of the Collateral will not result from the failure of such Company to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, during the period of such contest and such Company maintains adequate reserves in accordance with GAAP in connection with such contest;
(f) permit the Agent and designees of the Agent, from time to time, (relief pursuant to the extent not prohibited by law) to inspect at reasonable times the Inventory and Equipment, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Company and will, upon request of the Agent, deliver to the Agent all of such records and papers which pertain to the Collateral and all Persons obligated with respect thereto;
(g) upon request of the Agent, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the CollateralBankruptcy Cases), a notation, in form satisfactory to the Agent, of the Security Interests created hereby, and give all appropriate notices of assignment and take all other appropriate actions in accordance with the Federal Assignment of Claims Act (31 U.S.C. 3727), as amended from time to time, with respect to Collateral subject thereto;
(h) not sell, lease, assign, license, sublicense, abandon or otherwise dispose of, or create or permit to exist any Security Interest on any Collateral to or in favor of anyone other than the Agent; provided, however, that, if no Default shall have occurred and be continuing, such Company may engage in transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9 of the Credit Agreement;
(i) at all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 7.1.4 of the Credit Agreement and, if the Agent so requests, deposit with the Agent originals or certified copies of the relevant policies and certificates of insurance;
(j) furnish to the Agent notice in writing as soon as possible and in any event not later than thirty (30) days prior to the occurrence from time to time of (i) any change in the locations of any part of the Collateral from the locations shown in Schedules III and IV hereto, except for no more than $12,000,000 of Equipment and Inventory in transit and $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers, (ii) any change in the location of such Company's chief executive office, and (iii) any change in the name of such Company or the name under or by which it conducts its business, each of such notices also to contain evidence that such Company has taken all action required or reasonably desirable to maintain and preserve the Security Interest in favor of the Agent on the Collateral, free and clear of any other Security Interest or encumbrance whatsoever;
(k) reimburse the Agent for all reasonable expenses, including attorneys' fees and legal expenses and reasonable expenses of any repairs to realty or other property to which any Collateral may be affixed or be a part, incurred by the Agent in seeking to collect or enforce any rights under or with respect to the Collateral, in seeking to collect the Notes and all other Obligations, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by such Company at a rate per annum equal to the Default Rate;
(l) either itself or through licensees, unless such Company shall reasonably determine that a Trademark is of negligible economic value to such Company, (i) continue to use each Trademark on each and every trademark class of goods with which it is associated (as reflected in its catalogs, brochures and price lists) in order to maintain each Trademark in full force free from any claim of abandonment for non-use, (ii) maintain the quality of products and services offered under each Trademark, (iii) employ each Trademark with the appropriate notice of application or registration, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of any Trademark, (v) not use any Trademark except for the uses for which registration or application for registration of such Trademark has been made, and (vi) not (and not permit any licensee or sublicensee thereto to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated;
(m) at its sole expense, (i) without any request by the Agent, immediately deliver or cause to be delivered to the Agent, in due form for transfer (i.e., endorsed in blank or accompanied by duly executed undated blank stock or bond powers in form and substance satisfactory to the Agent), all Securities, Chattel Paper with a face amount of or requiring payment in the aggregate amount of $1,000,000 or more, Instruments with a face amount in excess of $500,000 (other than checks received in payment for such Company's goods or services in the ordinary course of business that are collected or converted to cash within two weeks after the receipt thereof) and Documents (other than Documents with a value of less than $1,000,000 or that are not held by such Company for more than 30 days), if any, at any time representing all or any of the Collateral, (ii) at the Agent's request, cause the Agent's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to the Agent each such certificate of title, and (iii) forthwith, execute and deliver or cause to be executed and delivered to the Agent, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by the Agent) such assignments (including, without limitation, assignments of life insurance with a cash value of $1,000,000 or more), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as may from time to time be necessary or desirable to establish and maintain to the satisfaction of the Agent a valid perfected lien on and security interest in all assets of such Company now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to secure payment and performance of the Obligations; and
(n) at the Agent's request after the occurrence and during the continuance of a Default, transfer all or any part of the Collateral into the name of the Agent or its nominee, with or without disclosing that such Collateral is subject to the Security Interest hereunder.
Appears in 1 contract
Agreements of the Companies. Each Company shallof the Companies agrees with the several Underwriters as follows:
(a) keep all its Inventory If, at the time this Agreement is executed and other Goodsdelivered, except it is necessary for no more than $12,000,000 the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of Equipment the Offered Units may commence, the Partnership, the General Partner and Inventory in transit Enbridge Management will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and no more than $2,000,000 of Equipment will advise you and Inventory located at third party warehouses leased counsel for the Underwriters promptly and, if requested by Kasco territory managers or unless the Agent shall otherwise consent you, will confirm such advice in writing, at one when the Registration Statement or more such post-effective amendment has become effective.
(b) Following the execution and delivery of its own premises this Agreement and thereafter from time to time during such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by the Underwriters or any dealer (the “Prospectus Delivery Period”), the Companies will advise you and counsel for the Underwriters promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement, the Basic Prospectus or the Final Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Offered Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) of any change in the financial position, business, prospects, or results of operations of any of the Companies, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement or the Final Prospectus (as shown on Schedule III heretothen amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Final Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Final Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time within the Prospectus Delivery Period, the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Partnership, the General Partner and Enbridge Management will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Partnership and the General Partner will furnish to you, at your request and without charge, (i) one conformed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement, (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) such number of copies of the exhibits to the Incorporated Documents as you may request.
(d) During the Prospectus Delivery Period, neither the Partnership nor the General Partner will file any amendment to the Registration Statement or make any amendment or supplement to the Final Prospectus or, file any document which, upon filing becomes an Incorporated Document, of which you and counsel for the Underwriters shall not previously have been advised or to which, after you and counsel for the Underwriters shall have received a copy of the document proposed to be filed, you shall reasonably object; provided that your consent shall not be unreasonably withheld or delayed.
(e) [Reserved]
(f) The Partnership will cause the Final Prospectus to be filed pursuant to, and in compliance with, Rule 424(b). As soon as practical following the execution and delivery of this Agreement and until the end of the Prospectus Delivery Period, the Partnership and the General Partner will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Final Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Partnership, the General Partner and Enbridge Management consent to the use of the Final Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Offered Units are offered by the Underwriters and by all dealers to whom Offered Units may be sold, both in connection with the offering and sale of the Offered Units and for such period of time thereafter as the Final Prospectus is required by the Act to be delivered in connection with sales by the Underwriters or any dealer. If during such period of time any event shall occur that in the judgment of the Partnership or the General Partner or in the opinion of counsel for the Underwriters is required to be set forth in the Final Prospectus (as then amended or supplemented) or at one or more should be set forth therein in order to make the statements therein, in the light of the premises listed circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Final Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Partnership, the General Partner and Enbridge Management will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Partnership, the General Partner or Enbridge Management and the Underwriters agree that the Final Prospectus should be amended or supplemented, the Partnership, the General Partner and Enbridge Management, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Companies will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Offered Units for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Partnership be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Units, in any jurisdiction where it is not now so subject.
(h) The Partnership and the General Partner will make generally available to security holders of the Partnership a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to Section 10 hereof or pursuant to clause (ii), (iii), (iv) or (v) of Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on Schedule IV heretothe part of any of the Companies to comply with the terms or fulfill any of the conditions of this Agreement, the Partnership, the General Partner and Enbridge Management, jointly and severally, agree to reimburse the Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith.
(j) The Partnership will apply the net proceeds from the sale of the Offered Units substantially in accordance with the description set forth in the Final Prospectus.
(k) Except as provided in this Agreement, none of the Companies will offer, sell, contract to sell or otherwise dispose of or hedge any Units or any securities substantially similar to, convertible into or exercisable or exchangeable for Units, or grant any options or warrants to purchase any Units or any such securities, for a period of 90 days after the date of the Final Prospectus, without the prior written consent of UBS Securities LLC, in consultation with Xxxxxx Brothers Inc.; provided, however, that the foregoing restriction shall not apply to either (i) so long as no Default shall have occurred an automatic increase in the number of i-units outstanding and be continuingowned by Enbridge Management, each Company may designate additional premises for inclusion on Schedule IV hereto upon thirty (30) days' advance written notice to the Agent and or (ii) the distribution of additional shares representing limited liability company interests in Enbridge Management to the case owners of Enbridge Management shares, upon the premises listed on Schedule IV hereto from time to time, such Company's Inventory and other Goods shall be kept separate from occurrence of a regular quarterly cash distribution by the Inventory and other Goods of those Persons (other than another Company) using such premises and shall be clearly and conspicuously designated as being such Company's sole property (for example, by posting signs or by affixing such Company's name Partnership on its Inventory Class A and other Goods);
(b) furnish the Agent such information concerning each Company, the Collateral and the Persons obligated on the Accounts as the Agent may from time to time reasonably request;
(c) defend each Company's title to the Collateral against all Persons and against all claims and demands whatsoever;
(d) do all acts reasonably necessary to maintain, preserve and protect all Collateral, keep all Collateral in good condition and repair (subject to normal wear and tear), and prevent any waste or unusual or unreasonable depreciation thereof;
(e) comply in all material respects with all laws, rules and regulations relating to, and promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against, the ownership, operation, possession, maintenance or use of the Collateral; provided, however, that such Company shall not be required to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, the validity of which is being contested by such Company in good faith by appropriate proceedings so long as forfeiture of any part of the Collateral will not result from the failure of such Company to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, during the period of such contest and such Company maintains adequate reserves in accordance with GAAP in connection with such contest;
(f) permit the Agent and designees of the Agent, from time to time, (to the extent not prohibited by law) to inspect at reasonable times the Inventory and Equipment, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Company and will, upon request of the Agent, deliver to the Agent all of such records and papers which pertain to the Collateral and all Persons obligated with respect thereto;
(g) upon request of the Agent, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the Collateral), a notation, in form satisfactory to the Agent, of the Security Interests created hereby, and give all appropriate notices of assignment and take all other appropriate actions in accordance with the Federal Assignment of Claims Act (31 U.S.C. 3727), as amended from time to time, with respect to Collateral subject thereto;
(h) not sell, lease, assign, license, sublicense, abandon or otherwise dispose of, or create or permit to exist any Security Interest on any Collateral to or in favor of anyone other than the Agent; provided, however, that, if no Default shall have occurred and be continuing, such Company may engage in transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9 of the Credit Agreement;
(i) at all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 7.1.4 of the Credit Agreement and, if the Agent so requests, deposit with the Agent originals or certified copies of the relevant policies and certificates of insurance;
(j) furnish to the Agent notice in writing as soon as possible and in any event not later than thirty (30) days prior to the occurrence from time to time of (i) any change in the locations of any part of the Collateral from the locations shown in Schedules III and IV hereto, except for no more than $12,000,000 of Equipment and Inventory in transit and $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers, (ii) any change in the location of such Company's chief executive office, and (iii) any change in the name of such Company or the name under or by which it conducts its business, each of such notices also to contain evidence that such Company has taken all action required or reasonably desirable to maintain and preserve the Security Interest in favor of the Agent on the Collateral, free and clear of any other Security Interest or encumbrance whatsoever;
(k) reimburse the Agent for all reasonable expenses, including attorneys' fees and legal expenses and reasonable expenses of any repairs to realty or other property to which any Collateral may be affixed or be a part, incurred by the Agent in seeking to collect or enforce any rights under or with respect to the Collateral, in seeking to collect the Notes and all other Obligations, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by such Company at a rate per annum equal to the Default Rate;Class B common units.
(l) either itself Except as stated in this Agreement and in the Final Prospectus, none of the Companies has taken, nor will take, directly or through licenseesindirectly, unless such Company shall any action designed to or that might reasonably determine that a Trademark is be expected to cause or result in stabilization or manipulation of negligible economic value the price of the Units to such Company, (i) continue to use each Trademark on each and every trademark class facilitate the sale or resale of goods with which it is associated (as reflected in its catalogs, brochures and price lists) in order to maintain each Trademark in full force free from any claim of abandonment for non-use, (ii) maintain the quality of products and services offered under each Trademark, (iii) employ each Trademark with the appropriate notice of application or registration, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of any Trademark, (v) not use any Trademark except for the uses for which registration or application for registration of such Trademark has been made, and (vi) not (and not permit any licensee or sublicensee thereto to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated;Offered Units.
(m) at its sole expenseThe Partnership, (i) without any request by the AgentGeneral Partner and Enbridge Management will use their best efforts to have the Offered Units listed, immediately deliver subject to official notice of issuance, on the New York Stock Exchange on or cause to be delivered to before the Agent, in due form for transfer (i.e., endorsed in blank or accompanied by duly executed undated blank stock or bond powers in form and substance satisfactory to the Agent), all Securities, Chattel Paper with a face amount of or requiring payment in the aggregate amount of $1,000,000 or more, Instruments with a face amount in excess of $500,000 (other than checks received in payment for such Company's goods or services in the ordinary course of business that are collected or converted to cash within two weeks after the receipt thereof) and Documents (other than Documents with a value of less than $1,000,000 or that are not held by such Company for more than 30 days), if any, at any time representing all or any of the Collateral, (ii) at the Agent's request, cause the Agent's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to the Agent each such certificate of title, and (iii) forthwith, execute and deliver or cause to be executed and delivered to the Agent, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by the Agent) such assignments (including, without limitation, assignments of life insurance with a cash value of $1,000,000 or more), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as may from time to time be necessary or desirable to establish and maintain to the satisfaction of the Agent a valid perfected lien on and security interest in all assets of such Company now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to secure payment and performance of the Obligations; andClosing Date.
(n) at Upon the Agent's request after issuance of the occurrence Offered Units by the Partnership, the General Partner shall make the additional capital contributions to the Partnership as required by Section 4.4(c)(ii) of the Third Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of October 17, 2002 (the “Partnership Agreement”).
(o) The Partnership, during the continuance of a DefaultProspectus Delivery Period, transfer will file all or any part of documents required to be filed with the Collateral into the name of the Agent or its nominee, with or without disclosing that such Collateral is subject Commission pursuant to the Security Interest hereunderExchange Act within the time periods required by the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Enbridge Energy Partners Lp)
Agreements of the Companies. Each Company shallof the Companies agrees with the Underwriter as follows:
(a) keep all its Inventory and other Goods, except for no more than $12,000,000 of Equipment and Inventory in transit and no more than $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managers or unless the Agent shall otherwise consent in writingIf, at one the time this Agreement is executed and delivered, it is necessary for the Registration Statement or more of its own premises (as shown on Schedule III hereto) or at one or more a post-effective amendment thereto to be declared effective before the offering of the premises listed on Schedule IV hereto; provided, however, that (i) so long as no Default shall have occurred and be continuing, each Company Offered Units may designate additional premises for inclusion on Schedule IV hereto upon thirty (30) days' advance written notice to the Agent and (ii) in the case of the premises listed on Schedule IV hereto from time to time, such Company's Inventory and other Goods shall be kept separate from the Inventory and other Goods of those Persons (other than another Company) using such premises and shall be clearly and conspicuously designated as being such Company's sole property (for example, by posting signs or by affixing such Company's name on its Inventory and other Goods);
(b) furnish the Agent such information concerning each Companycommence, the Collateral Partnership and the Persons obligated on General Partner will endeavor to cause the Accounts as the Agent may from time Registration Statement or such post-effective amendment to time reasonably request;
(c) defend each Company's title to the Collateral against all Persons and against all claims and demands whatsoever;
(d) do all acts reasonably necessary to maintain, preserve and protect all Collateral, keep all Collateral in good condition and repair (subject to normal wear and tear), and prevent any waste or unusual or unreasonable depreciation thereof;
(e) comply in all material respects with all laws, rules and regulations relating to, and promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against, the ownership, operation, possession, maintenance or use of the Collateral; provided, however, that such Company shall not be required to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, the validity of which is being contested by such Company in good faith by appropriate proceedings so long as forfeiture of any part of the Collateral will not result from the failure of such Company to comply with any such law, rule or regulation, or to pay any such fee, tax, assessment or other charge, during the period of such contest and such Company maintains adequate reserves in accordance with GAAP in connection with such contest;
(f) permit the Agent and designees of the Agent, from time to time, (to the extent not prohibited by law) to inspect at reasonable times the Inventory and Equipment, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Company and will, upon request of the Agent, deliver to the Agent all of such records and papers which pertain to the Collateral and all Persons obligated with respect thereto;
(g) upon request of the Agent, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the Collateral), a notation, in form satisfactory to the Agent, of the Security Interests created hereby, and give all appropriate notices of assignment and take all other appropriate actions in accordance with the Federal Assignment of Claims Act (31 U.S.C. 3727), as amended from time to time, with respect to Collateral subject thereto;
(h) not sell, lease, assign, license, sublicense, abandon or otherwise dispose of, or create or permit to exist any Security Interest on any Collateral to or in favor of anyone other than the Agent; provided, however, that, if no Default shall have occurred and be continuing, such Company may engage in transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9 of the Credit Agreement;
(i) at all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 7.1.4 of the Credit Agreement and, if the Agent so requests, deposit with the Agent originals or certified copies of the relevant policies and certificates of insurance;
(j) furnish to the Agent notice in writing become effective as soon as possible and will advise you and counsel for the Underwriter promptly and, if requested by you, will confirm such advice in any event not later than thirty writing, when the Registration Statement or such post-effective amendment has become effective.
(30b) days prior to Following the occurrence execution and delivery of this Agreement and thereafter from time to time during for such period as in the opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or any dealer (the "Prospectus Delivery Period"), the Partnership and the General Partner will advise you and counsel for the Underwriter promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement, the Basic Prospectus or the Final Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Offered Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) of any change in the locations financial position, business, prospects, or results of operations of any part of the Collateral from Companies, or of the locations shown happening of any event, which makes any statement of a material fact made in Schedules III the Registration Statement or the Final Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Final Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Final Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time within the Prospectus Delivery Period, the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Partnership and IV heretothe General Partner will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Partnership and the General Partner will furnish to you, except for no more than $12,000,000 at your request and without charge, (i) one conformed copy of Equipment the Registration Statement as originally filed with the Commission and Inventory in transit of each amendment thereto, including financial statements and $2,000,000 of Equipment and Inventory located at third party warehouses leased by Kasco territory managersall exhibits to the Registration Statement, (ii) any change in the location such number of such Company's chief executive office, and (iii) any change in the name of such Company or the name under or by which it conducts its business, each of such notices also to contain evidence that such Company has taken all action required or reasonably desirable to maintain and preserve the Security Interest in favor conformed copies of the Agent on the CollateralRegistration Statement as originally filed and of each amendment thereto, free and clear of any other Security Interest or encumbrance whatsoever;
(k) reimburse the Agent for all reasonable expensesbut without exhibits, including attorneys' fees and legal expenses and reasonable expenses of any repairs to realty or other property to which any Collateral as you may be affixed or be a part, incurred by the Agent in seeking to collect or enforce any rights under or with respect to the Collateral, in seeking to collect the Notes and all other Obligations, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by such Company at a rate per annum equal to the Default Rate;
(l) either itself or through licensees, unless such Company shall reasonably determine that a Trademark is of negligible economic value to such Company, (i) continue to use each Trademark on each and every trademark class of goods with which it is associated (as reflected in its catalogs, brochures and price lists) in order to maintain each Trademark in full force free from any claim of abandonment for non-use, (ii) maintain the quality of products and services offered under each Trademarkrequest, (iii) employ each Trademark with such number of copies of the appropriate notice of application or registrationIncorporated Documents, without exhibits, as you may request, and (iv) such number of copies of the exhibits to the Incorporated Documents as you may request.
(d) During the Prospectus Delivery Period, neither the Partnership nor the General Partner will file any amendment to the Registration Statement or make any amendment or supplement to the Final Prospectus or, file any document which, upon filing becomes an Incorporated Document, of which you and counsel for the Underwriter shall not adopt previously have been advised or use any mark which is confusingly similar to which, after you and counsel for the Underwriter shall have received a copy of the document proposed to be filed, you shall reasonably object; provided that your consent shall not be unreasonably withheld or a colorable imitation delayed.
(e) [Reserved]
(f) The Partnership will cause the Final Prospectus to be filed pursuant to, and in compliance with, Rule 424(b). As soon as practical following the execution and delivery of this Agreement and until the end of the Prospectus Delivery Period, the Partnership and the General Partner will expeditiously deliver to the Underwriter and each dealer, without charge, as many copies of the Final Prospectus (and of any Trademark, (vamendment or supplement thereto) not use any Trademark except for the uses for which registration or application for registration of such Trademark has been made, and (vi) not (and not permit any licensee or sublicensee thereto to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated;
(m) at its sole expense, (i) without any request by the Agent, immediately deliver or cause to be delivered to the Agent, in due form for transfer (i.e., endorsed in blank or accompanied by duly executed undated blank stock or bond powers in form and substance satisfactory to the Agent), all Securities, Chattel Paper with a face amount of or requiring payment in the aggregate amount of $1,000,000 or more, Instruments with a face amount in excess of $500,000 (other than checks received in payment for such Company's goods or services in the ordinary course of business that are collected or converted to cash within two weeks after the receipt thereof) and Documents (other than Documents with a value of less than $1,000,000 or that are not held by such Company for more than 30 days), if any, at any time representing all or any of the Collateral, (ii) at the Agent's request, cause the Agent's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to the Agent each such certificate of title, and (iii) forthwith, execute and deliver or cause to be executed and delivered to the Agent, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by the Agent) such assignments (including, without limitation, assignments of life insurance with a cash value of $1,000,000 or more), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as may from time to time be necessary or desirable to establish and maintain to the satisfaction of the Agent a valid perfected lien on and security interest in all assets of such Company now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to secure payment and performance of the Obligations; and
(n) at the Agent's request after the occurrence and during the continuance of a Default, transfer all or any part of the Collateral into the name of the Agent or its nominee, with or without disclosing that such Collateral is subject to the Security Interest hereunder.you may
Appears in 1 contract
Samples: Underwriting Agreement (Lakehead Pipe Line Partners L P)
