Agreements of the Debtors. Each Debtor (a) at their sole cost and expense, will execute and deliver all such agreements and instruments as necessary (or as Agent may reasonably request) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document and do such acts as may be reasonably necessary under applicable U.S. or state law, including the filing of any such notice filings or other agreements or instruments, at such times and at such places as are necessary (or as the Agent may reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, in order to establish and maintain valid, attached and perfected first-priority security interests in the Collateral in favor of the Lender Parties, free and clear of all Liens and claims and rights of third parties whatsoever except Permitted Liens; each Debtor hereby irrevocably authorizes the Agent at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (y) as being of an equal or lesser scope or within greater detail, and (ii) contain any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (x) whether such Debtor is an organization, the Type of Organization and the Organizational ID Number issued to such Debtor and (y) in the case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Agent in any jurisdiction prior to the date of this Agreement; (b) will keep all its Inventory at, and will not maintain any place of business at any location other than, its address(es) shown on Schedule I hereto or at such other addresses of which such Debtor shall have given the Agent not less than thirty (30) days’ prior written notice; (c) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Agent or its designees to determine at any time the status of the Non-Tangible Collateral; (d) will furnish the Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Agent may from time to time reasonably request; (e) will permit the Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation of an Event of Default) to inspect such Debtor’s Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon request of the Agent during the existence of an Event of Default, deliver to the Agent all of such records and papers; (f) will, upon request of the Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form satisfactory to the Agent, of the security interest of the Agent hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business and sales of Equipment that is no longer useful in its business or that is being replaced by similar Equipment or any other sale of collateral permitted under Section 7.2.7 of the Credit Agreement, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Liens; (h) without limiting the provisions of Section 7.1.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to the Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuing, the Agent will deliver any proceeds of such insurance that may be received by it to such Debtor and (B) whenever an Event of Default shall have occurred and be continuing, the Agent may apply any proceeds of such insurance that may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Agent may determine), and such policies or certificates thereof shall, if the Agent so requests, be deposited with or furnished to the Agent; (i) will take such actions as are reasonably necessary to keep its Goods in good repair and condition (ordinary wear and tear excepted); (j) will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (k) will, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to the extent that the failure to discharge such contested charge will not cause a Material Adverse Change, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other Goods; (l) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (m) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (n) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent control with respect to such Collateral; (o) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent possession of such Documents that are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Agent; (p) with respect to Collateral in the possession of a third party, other than Certificated Securities, Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Agent; (q) promptly notify the Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third party, and, upon the request of the Agent, will promptly enter into an amendment to this Agreement, and do such other acts or things deemed appropriate by the Agent to give the Agent a security interest in such Commercial Tort Claim; (r) further agrees to take other action reasonably requested by the Agent to ensure the attachment, perfection and first priority of, and the ability of the Agent to enforce, the security interests in any and all of the Collateral including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that the Debtor’s signature thereon is required therefor, (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other Person obligated on Collateral, (iv) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Agent, and (v) taking all actions required by the UCC in effect from time to time or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction; (s) not change its state of incorporation or organization, taxpayer identification number or Type of Organization; and (t) not change its legal name without providing the Agent with at least (30) days’ prior written notice. Any expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by Debtors. Whenever an Event of Default shall have occurred and be continuing, the Agent shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Agent do any and all lawful acts and execute any and all proper documents required by the Agent in aid of such enforcement and such Debtor shall promptly, upon demand, reimburse and indemnify the Agent for all costs and expenses incurred by the Agent in the exercise of its rights under this Section 6. Notwithstanding the foregoing, subject to Section 10 hereof, the Agent shall have no obligation or liability regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. To the extent Debtors use any of the proceeds from the Loans to purchase Collateral, Debtors’ repayment of the Loans shall apply on a “first-in-first-out” basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors purchased the Collateral.
Appears in 2 contracts
Samples: Security Agreement (Interface Security Systems, L.L.C.), Security Agreement (Interface Security Systems Holdings Inc)
Agreements of the Debtors. Each Debtor (a) at their sole cost the Agent's request, at any time and expensefrom time to time, will execute and deliver to the Agent such financing statements, amendments and other documents (and pay the cost of filing or recording the same in all such agreements and instruments as necessary (or as Agent may public offices reasonably requestdeemed appropriate by the Agent) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document and do such acts as may be reasonably necessary under applicable U.S. or state law, including the filing of any such notice filings or other agreements or instruments, at such times and at such places as are necessary (or as the Agent may reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, deems necessary in order to establish and maintain valid, attached and perfected first-priority first security interests in the Collateral in favor of the Lender PartiesParties (including, without limitation, delivery to the Agent of any Instruments or Certificated Securities which constitute Collateral), free and clear of all Liens and claims and rights of third parties whatsoever except Permitted Liens; each . Each Debtor hereby irrevocably authorizes the Agent at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (y) as being of an equal or lesser scope or within greater detail, and (ii) contain any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (x) whether such Debtor is an organization, the Type of Organization and the Organizational Organization ID Number issued to such Debtor and (y) in the case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Agent in any jurisdiction prior to the date of this Agreement; , (b) will keep all its Inventory at, and will not maintain any place of business at any location other than, its address(es) shown on Schedule I hereto or at such other addresses of which such Debtor shall have given the Agent not less than thirty (30) 30 days’ ' prior written notice; , (c) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Agent or its designees to determine at any time the status of the Non-Tangible Collateral; (d) will furnish the Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Agent may from time to time reasonably request; (e) will permit the Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation existence of an Event of a Default) to inspect such Debtor’s 's Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon request of the Agent during the existence of an Event of a Default, deliver to the Agent all of such records and papers; (f) will, upon request of the Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form satisfactory to the Agent, of the security interest of the Agent hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business and sales of Equipment that which is no longer useful in its business or that which is being replaced by similar Equipment or any other sale of collateral permitted under Section 7.2.7 of the Credit AgreementEquipment, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Liens; (h) without limiting the provisions of Section 7.1.3 10.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to the Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuingexisting, the Agent will shall deliver any proceeds of such insurance that which may be received by it to such Debtor and (B) whenever an Event of a Default shall have occurred and be continuingexisting, the Agent may apply any proceeds of such insurance that which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Agent may determine), and such policies or certificates thereof shall, if the Agent so requests, be deposited with or furnished to the Agent; (i) will take such actions as are reasonably necessary to keep its Goods in good repair and condition (ordinary wear and tear excepted)condition; (j) will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (k) will, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to the extent that the failure to discharge such contested charge will not cause a Material Adverse Change, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other Goods; (l) will, upon request of the Agent, (i) cause to be noted on the applicable certificate, in the event any of its Equipment is covered by a certificate of title, the security interest of the Agent in the Equipment covered thereby, and (ii) deliver all such certificates to the Agent or its designees; (m) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (mn) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; and (no) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent control with respect to such Collateral; (op) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent possession of such Documents that which are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Agent; (pq) with respect to Collateral in the possession of a third party, other than Certificated Securities, Securities and Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Agent; (qr) promptly notify the Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim where the amount in controversy is greater than $1,000,000.00 after the date hereof against any third party, and, upon the request of the Agent, will promptly enter into an amendment to this Agreement, and do such other acts or things deemed appropriate by the Agent to give the Agent a security interest in such Commercial Tort Claim; Claim (rs) further agrees to take other action reasonably requested by the Agent to ensure insure the attachment, perfection and first priority of, and the ability of the Agent to enforce, the security interests in any and all of the Collateral including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that the Debtor’s 's signature thereon is required therefor, (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other Person obligated Obligated on Collateral, (iv) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Agent, and (v) taking all actions required by the UCC in effect from time to time or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction; , (sT) not change its state of incorporation or organization, taxpayer identification number organization or Type of Organization; and (tu) not change its legal name without providing the Agent with at least (30) 30 days’ ' prior written notice. Any expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by Debtors. Whenever an Event of Except as otherwise expressly set forth in Section 2, whenever a Default shall have occurred and be continuingexisting, the Agent shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Agent do any and all lawful acts and execute any and all proper documents required by the Agent in aid of such enforcement and such Debtor shall promptly, upon demand, reimburse and indemnify the Agent for all costs and expenses incurred by the Agent in the exercise of its rights under this Section 6. Notwithstanding the foregoing, subject to Section 10 hereof, the Agent shall have no obligation or liability regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. To the extent Debtors use Debtor uses any of the proceeds from the Loans to purchase Collateral, Debtors’ Debtor's repayment of the Loans shall apply on a “"first-in-first-out” " basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors Debtor purchased the Collateral.
Appears in 1 contract
Agreements of the Debtors. Each Debtor (a) at their sole cost the Administrative Agent's request, at any time and expensefrom time to time, will shall execute and deliver all to the Administrative Agent such agreements financing statements, amendments and instruments as necessary (or as Agent may reasonably request) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document documents and do such acts as may be the Administrative Agent reasonably deems necessary under applicable U.S. or state law, including the filing of any such notice filings or other agreements or instruments, at such times and at such places as are necessary (or as the Agent may reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, in order to establish and maintain valid, attached and perfected first-priority first security interests in the Collateral in favor of the Lender PartiesLenders, free and clear of all Liens and claims and rights of third parties whatsoever except Permitted Liens; Liens and each Debtor hereby irrevocably authorizes the Administrative Agent at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (xy) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (yz) as being of an equal or lesser scope or within greater detail, and (ii) contain any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (xy) whether such Debtor is an organization, the Type of Organization, the Organization and the Organizational ID Number issued to such Debtor and (yz) in the case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Administrative Agent in any jurisdiction prior to the date of this Agreement; (b) will keep all its Inventory atand other tangible Collateral at (i) its address(es) shown on Schedules I and II hereto, (ii) such other addresses of which such Debtor shall have given the Administrative Agent not less than 10 days' prior written notice, (iii) the premises of its customers in the ordinary course of business, (iv) third party locations with respect to which an acknowledgement contemplated in Section 6(r) has been provided, and (v) any other third party location in the ordinary course of business provided that the Value of such Inventory and other tangible Collateral does not exceed $100,000 in the aggregate at such location or $500,000 in the aggregate for all such locations, and will not maintain any place of business at any location other than, than (x) its address(es) shown on Schedule Schedules I hereto or at and II hereto, and (ii) such other addresses of which such Debtor shall have given the Administrative Agent not less than thirty (30) 10 days’ ' prior written notice; (c) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Administrative Agent or its designees to determine at any reasonable time the status of the Non-Tangible Collateral; (d) will furnish the Administrative Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Administrative Agent may from time to time reasonably request; (e) will permit the Administrative Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation existence of an Event of a Default) to inspect such Debtor’s 's Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon reasonable request of the Administrative Agent during the existence of an Event of a Default, deliver to the Administrative Agent all of such records and papers; (f) will promptly and, in any event within five Business Days) notify Administrative Agent in writing upon acquiring or otherwise obtaining any Collateral consisting of Chattel Paper and will, upon reasonable request of the Administrative Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form reasonably satisfactory to the Administrative Agent, of the security interest of the Administrative Agent hereunder; (g) except for the sale or lease of Inventory assets permitted by the Credit Agreement, and except for the licensing of such Debtor's Intellectual Property in the ordinary course of its such Debtor's business upon fair and sales reasonable terms which are fully disclosed in writing in advance to the Administrative Agent, and the abandonment of Equipment that Intellectual Property which is no longer useful in its the business or that is being replaced by similar Equipment or any other sale of collateral permitted under Section 7.2.7 of the Credit Agreementotherwise not economically desirable, will not sell, lease, license or assign any Collateral or create or permit to exist any Lien on any Collateral other than Permitted Liens; (h) without limiting the provisions of Section 7.1.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained in accordance with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, Section 4.8 of the Credit Agreement and cause all such policies to provide that loss thereunder shall be payable to the Administrative Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuingexisting, the Administrative Agent will shall deliver any proceeds of such insurance that which may be received by it to such Debtor and (B) whenever an Event of a Default shall have occurred and be continuingexisting, the Administrative Agent may apply any proceeds of such insurance that which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as required by Section 1.5.3 of the Agent may determineCredit Agreement), and such policies or certificates thereof shall, if the Administrative Agent so requests, be deposited with or furnished to the Administrative Agent; (i) will take such actions as are reasonably necessary to keep its Equipment and other Goods useful and necessary in good repair and condition (ordinary wear and tear excepted); (j) will take such actions as are reasonably necessary to keep its Equipment business in good repair and condition and in good working order, ordinary wear and tear excepted; (kj) will, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to the extent that the failure to discharge such contested charge will not cause a Material Adverse Change, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other GoodsGoods in accordance with the Credit Agreement; (k) will promptly (and, in any event, within five Business Days) notify Administrative Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof which is subject to certificate of title statutes; (l) will upon request of the Administrative Agent, (i) cause to be noted on the applicable certificate, in the event any of its Equipment is covered by a certificate of title, the security interest of the Administrative Agent in the Equipment covered thereby, and (ii) deliver all such certificates to the Administrative Agent or its designees; (m) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (mn) will promptly (and, in any event, within five Business Days) notify Administrative Agent in writing upon acquiring or otherwise obtaining any Intellectual Property after the date hereof which is the subject of a registration or application; (o) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (np) will promptly (and, in any event, within five Business Days) notify the Administrative Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit AccountsAccounts (with respect to which Debtor is required to deliver a Deposit Account Control Agreement pursuant to the Credit Agreement), Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper and, upon the request of Administrative Agent, will promptly execute (and cause third parties to execute) such other documents, and do such other acts or things deemed appropriate by Administrative Agent to deliver to Administrative Agent Control with respect to such Collateral; (q) will promptly (and, in any event, within five Business Days) notify Administrative Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments in excess of $50,000, individually or in excess of $100,000 in the aggregate (other than instruments submitted for collection in the ordinary course of business) and, upon the request of Administrative Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Administrative Agent to deliver to the Agent control with respect to such Collateral; (o) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Administrative Agent possession of such Documents that which are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Administrative Agent; (pr) with respect to Collateral in the possession of a particular third party, other than Certificated Securities, Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, will obtain an acknowledgment from the such third party that it is holding the Collateral for the benefit of the Administrative Agent, other than (i) Collateral with customers of such Debtor in the ordinary course of business, (ii) tangible Collateral located with a bailee, warehouseman or other third party in the ordinary course of business and having an aggregate Value of $100,000 or less, provided, that the aggregate Value of all such tangible Collateral located with all such bailees, warehousemen or other third parties that have not executed an acknowledgement is less than $500,000, (iii) Certificated Securities, and (iv) Goods covered by a Document; (qs) will promptly (and, in any event, within five Business Days) notify the Administrative Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim in excess of $25,000 individually or Commercial Tort Claims in excess of $50,000 in the aggregate after the date hereof against any third party, and, upon the request of the Administrative Agent, will promptly enter into an amendment to this Agreement, and do such other acts or things deemed appropriate by the Administrative Agent to give the Administrative Agent a security interest in such Commercial Tort ClaimClaim or Commercial Tort Claims, as applicable; (rt) will not change its state of incorporation or organization or Type of Organization or principal place of business or chief executive office without giving the Administrative Agent thirty (30) days prior written notice thereof; (u) will not change its legal name without providing Administrative Agent with at least 30 days prior written notice; (v) will reimburse the Administrative Agent for all reasonable out-of-pocket expenses, including reasonable attorney's fees and charges (including time charges of attorneys who are employees of the Administrative Agent), incurred by the Administrative Agent in seeking to collect or enforce any rights in respect of such Debtor's Collateral; and (w) further agrees to take other action reasonably requested by the Administrative Agent to ensure insure the attachment, perfection and first priority ofof (subject to Permitted Liens), and the ability of the Administrative Agent to enforce, the security interests in any and all of the Collateral including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that the Debtor’s 's signature thereon is required therefor, (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority ofof (subject to Permitted Liens), or ability of the Administrative Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third third-party consents and approvals, including without limitation limitation, any consent of any licensor, lessor or other Person obligated on Collateral, other than (a) with respect to Collateral located with a customer of such Debtor in the ordinary course of business and (b) with respect to tangible Collateral located with bailee, warehouseman or other third party in the ordinary course of business having an aggregate Value of $100,000 or less, provided, that the aggregate Value of all such tangible Collateral located with all such bailees, warehousemen and other third parties is less than or equal to $500,000, (iv) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the AgentAdministrative Agent other than with respect to Borrower's leased premises set forth on Schedule II (other than the World Trade Center Chicago, 000 Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx), and (v) taking all actions required by the UCC in effect from time to time or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction; (s) not change its state of incorporation or organization, taxpayer identification number or Type of Organization; and (t) not change its legal name without providing the Agent with at least (30) days’ prior written notice. Any reasonable out-of-pocket expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by Debtors. Whenever an Event of Except as otherwise expressly set forth in Section 2, whenever a Default shall have occurred and be continuingexisting, the Administrative Agent shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Administrative Agent do any and all lawful acts and execute any and all proper documents required by the Administrative Agent in aid of such enforcement enforcement, and such Debtor shall promptly, upon demand, reimburse and indemnify the Administrative Agent for all costs and expenses incurred by the Administrative Agent in the exercise of its rights under this Section 6. Notwithstanding the foregoing, subject to Section 10 hereof, the Administrative Agent shall have no obligation or liability regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. To the extent Debtors use any of the proceeds from the Loans to purchase Collateral, Debtors’ repayment of the Loans shall apply on a “first-in-first-out” basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors purchased the Collateral.
Appears in 1 contract
Samples: Security Agreement (CCC Information Services Group Inc)
Agreements of the Debtors. Each Debtor (a) at their sole will, upon request of the Agent, execute such financing statements and other documents (and pay the cost and expense, will execute and deliver of filing or recording the same in all such agreements and instruments as necessary (or as Agent may public offices reasonably requestdeemed appropriate by the Agent) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document and do such other acts as may be reasonably necessary under applicable U.S. or state law, and things (including delivery to the filing Agent of any such notice filings Instruments or other agreements or instrumentsCertificated Securities which constitute Collateral), at such times and at such places as are necessary (or all as the Agent may from time to time reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, in order to establish and maintain valid, attached and perfected first-priority a valid security interests interest in the Collateral in favor of the Lender Parties, (free and clear of all Liens and other liens, claims and rights of third parties whatsoever except whatsoever, other than Permitted Liens; ) to secure the payment of the Liabilities (and each Debtor hereby irrevocably authorizes the Agent at any time, and from time to time, to file in any jurisdiction financing statement or any initial financing statements and amendments amendment thereto that (i) indicate indicates the Collateral (x) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (y) as being of an equal or lesser scope or within with greater detail, and (ii) contain contains any other information required by Section Part 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendmentstatement, including (x) whether such Debtor is an organization, the Type type of Organization organization and the Organizational ID Number any organizational identification number issued to such Debtor and (y) in the case of a financing statement filed as a fixture filing or indicating Collateral to be as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Agent in any jurisdiction prior to the date of this Agreement); (b) will keep all its Inventory Inventory, Equipment and other Goods at, and will not maintain any place of business at any location other than, its address(es) shown on Schedule Schedules I and II hereto or at such other addresses of which such Debtor shall have given the Agent not less than thirty (30) 10 days’ prior written notice; (c) will not change its state of organization or incorporation and will not change its name, identity or organizational structure such that any financing statement filed to perfect the Agent’s interests under this Agreement would become seriously misleading, unless such Debtor shall have given the Agent not less than 10 days’ prior written notice of such change (provided that this clause 6(c) shall not be deemed to authorize any change or transaction prohibited under the Credit Agreement); (d) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Agent or its designees to determine at any time the status of the Non-Tangible Collateral; (de) will furnish the Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Agent may from time to time reasonably request; (ef) will permit the Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation existence of an Event of a Default) to inspect such Debtor’s Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon request of the Agent during the existence of an Event of a Default, deliver to the Agent all of such records and papers; (fg) will, upon request of the Agent, stamp on its records concerning the Collateral, and add on all Instruments and tangible Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form satisfactory to the Agent, of the security interest of the Agent hereunderhereunder (which notation on Instruments or Chattel Paper may state, if the Agent requests, that any purchase (as defined in Section 1-201(32) of the UCC) of such Instrument or Chattel Paper is in violation of the Agent’s rights); (gh) except for the sale or lease of Inventory in the ordinary course of its business and business, sales of Equipment that which is no longer useful in its business or that which is being replaced by similar Equipment or any other sale of collateral Equipment, and for Dispositions permitted under by Section 7.2.7 9.10 of the Credit Agreement, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Liens; (hi) without limiting the provisions of Section 7.1.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained required by companies similarly situated, Section 9.3 of the Credit Agreement and cause all such policies covering the Collateral to provide that loss thereunder shall be payable to the Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuingexisting, the Agent will shall deliver any proceeds of such insurance that which may be received by it to such Debtor and (B) whenever an Event of a Default shall have occurred and be continuingexisting, the Agent may apply any proceeds of such insurance that which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Agent may determine), and such policies or certificates thereof shall, if the Agent so requests, be deposited with or furnished to the Agent; (ij) will take such actions as are reasonably necessary to keep its Goods Inventory in good repair and condition (ordinary wear and tear excepted)condition; (jk) will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (kl) will, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to the extent that the failure to discharge such contested charge will not cause a Material Adverse Change, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other Goods, other than with respect to Equipment which is no longer useful in its business; (lm) will, upon request of the Agent, (i) cause to be noted on the applicable certificate, in the event any of its Equipment is covered by a certificate of title, the security interest of the Agent in the Equipment covered thereby and (ii) deliver all such certificates to the Agent or its designees; (n) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (mo) except as listed on Schedule VI, will keep all of the tangible Collateral Collateral, Deposit Accounts and Investment Property in the United States; (n) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent control with respect to such Collateral; (o) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent possession of such Documents that are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Agent; (p) with respect to Collateral in the possession of a third party, other than Certificated Securities, Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Agent; (q) will promptly notify the Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim which is claiming damages in excess of $1,000,000 after the date hereof against any third party, and thereupon this Agreement shall be deemed amended to include a specific reference (sufficient under Section 9-108 of the UCC) to such Commercial Tort Claim; (q) will promptly notify the Agent in writing upon becoming the beneficiary under any letter of credit and, upon at the request of the Agent, will promptly enter into pursuant to an amendment to this Agreement, and do such other acts or things deemed appropriate by the Agent to give the Agent a security interest in such Commercial Tort Claim; (r) further agrees to take other action reasonably requested by the Agent to ensure the attachment, perfection and first priority of, and the ability of the Agent to enforce, the security interests in any and all of the Collateral including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that the Debtor’s signature thereon is required therefor, (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other Person obligated on Collateral, (iv) obtaining waivers from mortgagees and landlords agreement in form and substance satisfactory to the Agent, either (A) arrange for the issuer and any confirmer or other nominated person of such letter of credit to consent to an assignment to the Agent of such letter of credit or (vB) taking all actions required by arrange for the UCC Agent to become the transferee beneficiary of such letter of credit; (r) will promptly notify the Agent in effect from time to time writing if such Debtor holds or by other law, as applicable acquires an interest in any relevant UCC jurisdictionElectronic Chattel Paper and, or by other law at the request of the Agent, take such action as applicable the Agent may reasonably request to vest control, under Section 9-105 of the UCC, of such Electronic Chattel Paper in any foreign jurisdictionthe Agent; and (s) acknowledges and agrees that it is not change its state authorized to file any financing statement in favor of incorporation or organization, taxpayer identification number or Type of Organization; and (t) not change its legal name without providing the Agent with at least (30) days’ or amendment thereto without the prior written noticeconsent of the Agent and that it will not do so without the prior written consent of the Agent, subject to such Debtor’s rights under Section 9-509(d)(2) of the UCC. Any expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by Debtorsthe applicable Debtor. Whenever an Event of a Default shall have occurred and be continuingexisting, the Agent shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Agent do any and all lawful acts and execute any and all proper documents required by the Agent in aid of such enforcement and such Debtor shall promptly, upon demand, reimburse and indemnify the Agent for all costs and expenses incurred by the Agent in the exercise of its rights under this Section 6. Notwithstanding the foregoing, subject to Section 10 hereof, the Agent shall have no obligation or liability regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. To , except to the extent Debtors use any caused by the gross negligence or wilful misconduct of the proceeds from the Loans to purchase Collateral, Debtors’ repayment of the Loans shall apply on a “first-in-first-out” basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors purchased the CollateralAgent.
Appears in 1 contract
Agreements of the Debtors. Each Debtor Section 5.01 The Debtors hereby covenant and agree during the Support Period:
(a) at their sole cost and expense, will execute and deliver all such agreements and instruments as necessary (or as Agent may reasonably request) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document and do such acts as may be reasonably necessary under applicable U.S. or state law, including the filing of any such notice filings or other agreements or instruments, at such times and at such places as are necessary (or as the Agent may reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, in order to establish and maintain valid, attached and perfected first-priority security interests in the Collateral in favor of the Lender Parties, free and clear of all Liens and claims and rights of third parties whatsoever except Permitted Liens; each Debtor hereby irrevocably authorizes the Agent at any time, and from time to timeDefinitive Documents, to file in any jurisdiction any initial financing statements and amendments thereto that (i) indicate take any and all actions reasonably necessary to implement and consummate the Collateral (x) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised Restructuring in accordance with the Collateral falls within terms and conditions set forth in this Agreement and the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (y) as being of an equal or lesser scope or within greater detailRestructuring Term Sheet, and (ii) contain pursue any other information required by Section 5 of Article 9 necessary or appropriate federal, state, and local regulatory or governmental approvals to enable confirmation of the UCC Plan and consummation of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendmentRestructuring, including (x) whether such Debtor is an organization, the Type of Organization and the Organizational ID Number issued to such Debtor and (y) in the case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Agent in any jurisdiction prior to the date of this Agreement; (b) will keep all its Inventory at, and will not maintain any place of business at any location other than, its address(es) shown on Schedule I hereto or at such other addresses of which such Debtor shall have given the Agent not less than thirty (30) days’ prior written notice; (c) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Agent or its designees to determine at any time the status of the Non-Tangible Collateral; (d) will furnish the Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Agent may from time to time reasonably request; (e) will permit the Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation of an Event of Default) to inspect such Debtor’s Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon request of the Agent during the existence of an Event of Default, deliver to the Agent all of such records and papers; (f) will, upon request of the Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form satisfactory to the Agent, of the security interest of the Agent hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business and sales of Equipment that is no longer useful in its business or that is being replaced by similar Equipment or any other sale of collateral permitted under Section 7.2.7 of the Credit Agreement, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Liens; (h) without limiting the provisions of Section 7.1.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to the Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuing, the Agent will deliver any proceeds of such insurance that may be received by it to such Debtor and (B) whenever an Event of Default shall have occurred and be continuing, the Agent may apply any proceeds of such insurance that may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Agent may determine), and such policies or certificates thereof shall, if the Agent so requests, be deposited with or furnished to the Agent; (i) will take such actions as are reasonably necessary to keep its Goods in good repair and condition (ordinary wear and tear excepted); (j) will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (k) will, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to the extent that the failure to discharge such contested charge will not cause a Material Adverse Change, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other Goods; (l) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (m) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (n) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent control with respect to such Collateral; (o) promptly notify the Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments and, upon the request of the Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent to deliver to the Agent possession of such Documents that are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Agent; (p) with respect to Collateral in the possession of a third party, other than Certificated Securities, Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Agent; (q) promptly notify the Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third party, and, upon the request of the Agent, will promptly enter into an amendment to this Agreement, and do such other acts or things deemed appropriate by the Agent to give the Agent a security interest in such Commercial Tort Claim; (r) further agrees to take other action reasonably requested by the Agent to ensure the attachment, perfection and first priority of, and the ability of the Agent to enforce, the security interests in any and all of the Collateral including, without limitation, approvals from the Bankruptcy Court and/or any Governmental Unit whose approval or consent is determined by the Debtors and/or the Required Consenting Creditors to be necessary or appropriate to consummate the Restructuring;
(b) subject to the terms of this Agreement and the Definitive Documents, to (i) executingprepare or cause to be prepared the Definitive Documents (including, delivering andwithout limitation, where appropriateall relevant motions, filing financing statements applications, orders, agreements and amendments relating thereto under the UCC, other documents) each of which shall be consistent with this Agreement and shall be in form and substance acceptable to the extentRequired Consenting Noteholders and the Debtors, if any, that and the Debtor’s signature thereon is required thereforRequired Consenting First Lien Lenders to the extent of their consent rights contained herein with respect to the applicable Definitive Documents, (ii) complying provide draft copies of all material motions, orders, other pleadings, documents and/or applications relating to the Restructuring or that the Debtors intends to file with the Bankruptcy Court, including the Plan, the Disclosure Statement, any provision proposed amended version of the Plan or Disclosure Statement, all First Day Pleadings, all First Day Orders, the DIP Documents, any other Definitive Document, and/or any responses or oppositions that the Debtors intend to file or submit, to Consenting Creditor Group Counsel, as soon as reasonably practicable before the filing, execution, distribution or use (as applicable) of such document, and consult in good faith with Consenting Creditor Group Counsel, regarding the form and substance of any statute, regulation or treaty of the United States foregoing documents in advance of such proposed filing, execution, distribution or use (as applicable), but in no event less than two (2) Business Days prior to such filing, execution, distribution or use (as applicable); provided that each such document shall be consistent in all respects with this Agreement and such other terms and conditions as are acceptable to Required Consenting Creditors and the Debtors; provided, further, that the foregoing shall not apply to any Collateral if compliance with such provision is a condition to attachmentretention applications, perfection or priority offee applications, or ability related declarations hired by the Debtors’ Advisors;
(c) subject to the terms of this Agreement and the Definitive Documents, if applicable, to use commercially reasonable efforts to obtain, or assist the Consenting Creditors in obtaining, any and all required governmental, regulatory and/or third-party approvals (including Bankruptcy Court approvals) to effectuate the Restructuring on the terms contemplated by this Agreement and the Plan;
(d) subject to the terms of this Agreement, the Definitive Documents, and to professional responsibilities, in connection with the Chapter 11 Cases, to timely file with the Bankruptcy Court a written objection to any motion filed with the Bankruptcy Court by any Entity seeking the entry of an order (i) directing the appointment of an examiner with expanded powers or a trustee (beyond those set forth in sections 1106(a)(3) and (4) of the Agent Bankruptcy Code), (ii) converting any of the Chapter 11 Cases to enforce, cases under chapter 7 of the security interests in such CollateralBankruptcy Code, (iii) obtaining governmental and other third party consents and approvals, including without limitation dismissing any consent of any licensor, lessor or other Person obligated on Collateralthe Chapter 11 Cases, (iv) obtaining waivers from mortgagees and landlords in form and substance satisfactory to for relief that (y) is materially inconsistent with this Agreement or (z) would frustrate the Agentpurposes of this Agreement, and including by preventing consummation of the Restructuring, or (v) taking all actions required modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization (except if such relief is granted pursuant to a motion filed with the consent of the Required Consenting Creditors);
(e) subject to the terms of this Agreement and the Definitive Documents, as requested in writing by the UCC Required Consenting Noteholders or the Required Consenting First Lien Lenders, to cause management and advisors of the Debtors to inform and/or confer with the Consenting Noteholder Advisors and the First Lien Ad Hoc Group Counsel as to: (i) the status and progress of the Restructuring, including progress in effect relation to the negotiations of the Definitive Documents; (ii) the status of obtaining any necessary or desirable authorizations (including any consents) with respect to the Restructuring from time to time or by other laweach of the Consenting Creditors, as applicable in any relevant UCC jurisdictioncompetent judicial body, Governmental Unit, banking, taxation, supervisory, or by other law as applicable regulatory body in any foreign jurisdictionconnection with the Restructuring; (siii) not change its state the business and financial performance of incorporation or organization, taxpayer identification number or Type the Debtors and any of Organizationtheir direct and indirect subsidiaries (including liquidity); and (tiv) not change its legal name without providing the Agent with at least (30) days’ prior written notice. Any expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by Debtors. Whenever an Event of Default shall have occurred and be continuing, the Agent shall have the right to bring suit to enforce any or all each of the Intellectual Property or licenses thereunderforegoing cases (i)–(iii), in which event the applicable Debtor shall at the request of the Agent do any and all lawful acts and execute any and all proper documents required by the Agent in aid of such enforcement and such Debtor shall promptly, upon demand, reimburse and indemnify the Agent for all costs and expenses incurred by the Agent in the exercise of its rights under this Section 6. Notwithstanding provide timely responses to reasonable diligence requests with respect to the foregoing, subject to Section 10 hereofany applicable restrictions and limitations set forth in any Confidentiality Agreements then in effect;
(f) except as otherwise provided in this Agreement or any order of the Bankruptcy Court, (i) to operate the business of the Debtors and its direct and indirect subsidiaries in the ordinary course in a manner that is consistent with this Agreement, the Agent most current business plan provided to the Initial Consenting Noteholders and the Initial Consenting First Lien Lenders, past practices, and, except as expressly contemplated or provided in this Agreement, use commercially reasonable efforts to preserve intact the Debtors’ business organization and relationship with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, and (ii) subject to any applicable restrictions and limitations set forth in any Confidentiality Agreements then in effect, to provide the Consenting Creditor Advisors reasonable access (A) during normal business hours, to the Debtors’ books, records and facilities and (B) to the management and advisors of the Debtors;
(g) that regardless of whether the Restructuring is consummated, the Debtors shall have promptly: (i) pay in full and in Cash all Restructuring Fees and Expenses when incurred and invoiced in accordance with the relevant engagement letters and/or fee arrangements, and shall continue to pay such amounts as they come due, and otherwise in accordance with the applicable engagement letters and/or fee arrangements of the Consenting Creditor Advisors (and not terminate such engagement letters and/or fee arrangements or seek to reject them in the Chapter 11 Cases); and (ii) without limiting the Debtors’ obligations pursuant to the preceding clause (i) of this Section 5.01(g), reimburse in full and in Cash each Initial Consenting Noteholder and Initial Consenting First Lien Lender, as applicable, for all documented out-of-pocket costs or expenses (which out-of-pocket costs or expenses shall not include any professional or advisor fees of such Initial Consenting Noteholder or Initial Consenting First Lien Lender, as applicable) incurred by such Initial Consenting Noteholder or Initial Consenting First Lien Lender, as applicable, in connection with the Restructuring. Unless paid prior to the Support Effective Date, within five (5) Business Days of entry of the Interim DIP Order, the Debtors shall pay or reimburse, as applicable, all outstanding Restructuring Fees and Expenses in accordance with the relevant engagement letters and/or fee arrangements, and all outstanding out-of-pocket costs and expenses of the Initial Consenting Noteholders and Initial Consenting First Lien Lenders incurred prior to the Support Effective Date as described in the preceding sentence;
(h) subject to the terms of this Agreement and the Definitive Documents, negotiate in good faith upon request of the Required Consenting Noteholders any modifications to the Restructuring that improve the tax efficiency of the Restructuring, it being understood and agreed that the terms of the Restructuring as finalized by the Debtors and the Required Consenting Noteholders will be structured in a tax-efficient manner, taking into account (x) the tax and non-tax considerations and the associated costs of the Debtors and the Consenting Noteholders and (y) the fiduciary duties of the Debtors, their officers, and directors, as well as applicable professional responsibilities with respect thereto;
(i) subject to the terms of this Agreement and the Definitive Documents, to promptly notify the Consenting Creditors, in writing, of any material governmental or third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened);
(j) subject to the terms of this Agreement and the Definitive Documents, to timely file a formal written response in opposition to, or take all appropriate actions to oppose (if circumstances do not allow for the filing of a formal written response), any objection filed with the Bankruptcy Court by any Entity with respect to the entry of the Interim DIP Order and/or Final DIP Order, draft copies of which responses shall be provided to Consenting Creditor Group Counsel as soon as reasonably practicable, but in no obligation or liability event less than two (2) Business Days, and the Debtors shall consult in good faith with Consenting Creditor Group Counsel regarding the Collateral form and substance thereof, prior to the filing or submission of any such response;
(k) subject to the terms of this Agreement and the Definitive Documents, to use reasonable best efforts to cause each of the Milestones to be satisfied; and
(l) subject to the terms of this Agreement and the Definitive Documents, to not directly or indirectly take any action that would be inconsistent with this Agreement, the Definitive Documents, or interfere with the Restructuring (including encouraging another person to undertake any action prohibited by this Agreement or the Definitive Documents).
Section 5.02 The Debtors covenant and agree that, during the Support Period, each of the Debtors shall not directly or indirectly:
(a) through any Entity (including any administrative agent or collateral agent), (i) subject to Section 6.01, seek or solicit any Alternative Restructuring, or (ii) object to or take any other action that is inconsistent with or that would reasonably be expected to prevent, interfere with, delay, or impede the Solicitation, approval of, and entry of orders regarding the Definitive Documents, or the confirmation and consummation of the Plan and the Restructuring (including by filing any motion, pleading, or other document with the Bankruptcy Court or any thereof by reason ofother court that is inconsistent with this Agreement, the Plan or any of the other Definitive Documents)
(b) amend or modify any of the Definitive Documents in a manner that is inconsistent with any such document, this Agreement or the Plan;
(c) without prior written consent of the Required Consenting Creditors, consummate or enter into a definitive agreement evidencing any merger, consolidation, disposition of material assets, acquisition of material assets, or arising out ofsimilar transaction, pay any dividend, or incur any indebtedness for borrowed money, in each case outside the ordinary course of business and other than as contemplated by the Plan, this Agreement. To , and the Restructuring (including incurrence of indebtedness in connection with the DIP Facility consistent with this Agreement and the DIP Documents);
(d) enter into (i) any new employee incentive plan or employee retention plan or any new or amended agreement regarding employee compensation, including executive compensation, or, in the case of an Insider (as defined in section 101(31) of the Bankruptcy Code), any other new or amended compensation arrangement or payment (which, in each case, for the avoidance of doubt, shall exclude any existing broad-based benefit plan providing health or welfare benefits) or (ii) any executory contract or lease with a value exceeding $100,000, in each case, except with the prior written consent of the Required Consenting Noteholders; and
(e) except, in each case, (i) to the extent Debtors use any reasonably necessary to consummate the Restructuring or (ii) otherwise to achieve tax efficiency (taking into account the tax and non-tax considerations and the associated costs of the proceeds from Debtors and the Loans Consenting Noteholders), take any action or inaction that would cause a change to purchase Collateralthe tax classification, Debtors’ repayment for United States federal income tax purposes, of any Debtor; provided that any change to the tax classification for United States federal income tax purposes of any Debtor pursuant to clause (ii) hereof shall be subject to the prior written consent of the Loans shall apply on a “first-in-first-out” basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors purchased the CollateralRequired Consenting Noteholders.
Appears in 1 contract
Agreements of the Debtors. Each Debtor Debtor: (a) at their sole cost and expense, will execute and deliver all such agreements and instruments as necessary (or as Agent may reasonably request) to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by hereunder or any other Loan Document and do such acts as may be reasonably necessary under applicable U.S. or state law, including the filing of any such notice filings or other agreements or instruments, at such times and at such places as are necessary (or as the Agent may reasonably request), in each case subject to the terms of this Agreement or any other Loan Document, in order to establish and maintain valid, attached and perfected first-priority security interests in the Collateral in favor of the Lender Parties, free and clear of all Liens and claims and rights of third parties whatsoever except Permitted Liens; each Debtor hereby irrevocably authorizes the Agent Collateral Trustee at any time, and from time to time, to file in any jurisdiction jurisdiction, any initial financing statements and amendments thereto that that: (i) indicate the Collateral (x) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, or (y) as being of an equal or lesser scope or within greater detail, filed and (ii) contain any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (x) whether such Debtor is an organization, the Type of Organization, the Organization and the Organizational ID Number or Federal Employer Identification Number issued to such Debtor and (y) in the case of a financing statement filed as a fixture filing or indicating the Collateral to be extracted collateral or timber to be cutcollateral, a sufficient description of real property to which the Collateral relates, such Debtor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Agent in any jurisdiction prior to the date of this Agreement; (b) will except upon 15 days’ prior written notice to the Collateral Trustee shall keep all its Inventory at, and will not maintain any place of business at at, any location other than, than its address(es) shown on Schedule I hereto (or at such other addresses of which such Debtor shall have given the Agent not less than thirty (30) days’ prior written noticeany amendment thereto); (c) will shall keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Agent Collateral Trustee or its designees to readily determine at any time the status of the Non-Tangible Collateral; (d) will furnish the Agent Collateral Trustee such information concerning such Debtor, the Collateral and the Account Debtors as the Agent Collateral Trustee may from time to time reasonably request; (e) will shall permit the Agent Collateral Trustee and its designees, from time to timein accordance with the provisions of the Indenture, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice following the occurrence and during the continuation of an Event of Default) to inspect such Debtor’s Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and willshall, upon prior request of the Agent Collateral Trustee during the existence and continuation of an Event of Default, subject to the provisions set forth in the Intercreditor Agreement, immediately deliver to the Agent Collateral Trustee all of such records and papers; (f) willshall, upon request if requested by the Agent to take similar action in respect of First Lien Obligations (as defined in the AgentIntercreditor Agreement), stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of the Collateral, a notation, in form reasonably satisfactory to the AgentCollateral Trustee, of the security interest of the Agent Collateral Trustee hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business and or as permitted under this Agreement or the Credit Agreement, sales of Equipment that valued in excess of $50,000 which is no longer used or useful in its business or that which is being replaced by similar Equipment or any other sale of collateral the Collateral permitted under Section 7.2.7 of the Credit AgreementIndenture, will shall not sell, lease, assign or assign, create or permit to exist any Lien on any Collateral Collateral, other than Permitted Liens; (h) without limiting the provisions of Section 7.1.3 of the Credit Agreement, will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to the Agent as its interest may appear (it being understood that (A) so long as no Event of Default shall have occurred and be continuing, the Agent will deliver any proceeds of such insurance that may be received by it to such Debtor and (B) whenever an Event of Default shall have occurred and be continuing, the Agent may apply any proceeds of such insurance that may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Agent may determine), and such policies or certificates thereof shall, if the Agent so requests, be deposited with or furnished to the Agent; (i) will take such actions as are reasonably necessary to keep its Goods in good repair and condition (ordinary wear and tear and casualty excepted); (ji) will shall take all such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (kj) willshall, except to the extent that such fees, taxes, assessments and other charges are being contested in good faith and by appropriate proceedings, diligently conducted and for which appropriate reserves, in accordance with GAAP have been established, but only to otherwise permitted under the extent that the failure to discharge such contested charge will not cause a Material Adverse ChangeIndenture, promptly pay when due all license fees, registration fees, taxes, assessments and other charges that which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other GoodsGoods except as could not reasonably be expected to cause a material adverse effect; (lk) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (m) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (n) shall promptly notify the Agent Collateral Trustee in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic Chattel Paper with an individual value in excess of $50,000 not listed on the Schedules hereto and, upon if requested by the request Agent to take similar action in respect of First Lien Obligations (as defined in the AgentIntercreditor Agreement), will shall promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent Collateral Trustee to deliver to the Agent Collateral Trustee (or a bailee therefor) control with respect to such Collateral; (ol) shall promptly notify the Agent Collateral Trustee in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments each valued in excess of $50,000 and, upon if requested by the request Agent to take similar action in respect of First Lien Obligations (as defined in the Intercreditor Agreement) and subject to the terms of the AgentIntercreditor Agreement, will shall promptly execute such other documents, and do such other acts or things deemed appropriate by the Agent necessary to deliver to the Agent Collateral Trustee (or a bailee therefor) possession of such Documents that which are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the AgentCollateral Trustee (or a bailee therefor); (pm) with respect to Collateral in the possession of a third party, other than Certificated Securities, Goods covered by a Document, or de minimis portions of the Collateral temporarily in the possession of another in the ordinary course of such third parties’ business including as described on Schedule VII, obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Agent; (q) shall promptly notify the Agent Collateral Trustee in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third partyparty valued in excess of $100,000, and, upon if requested by the request Agent to take similar action in respect of First Lien Obligations (as defined in the AgentIntercreditor Agreement), will shall promptly enter into an amendment to this Agreement, and do such other acts or things deemed appropriate by the Agent Collateral Trustee, to give the Agent Collateral Trustee a security interest in such Commercial Tort Claim; (rn) further agrees shall execute and deliver to the Collateral Trustee (or a bailee therefor) such documents and take other action as reasonably requested by the Agent Collateral Trustee to ensure insure the attachment, perfection and second priority (or, after the Discharge of First Priority Claims (as defined in the Intercreditor Agreement), first priority priority) of, and the ability of the Agent Collateral Trustee to enforce, free and clear of all Liens and claims and rights of third parties whatsoever (except Permitted Liens), the security interests in any and all of the Collateral including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that the Debtor’s signature thereon is required therefor, (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Agent Collateral Trustee to enforce, the security interests in such Collateral, (iiiii) obtaining governmental and other third party consents and approvals, including including, without limitation limitation, any consent of any licensor, lessor or other Person obligated on Collateral, (iv) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Agent, Collateral and (viii) taking all actions required by the UCC in effect from time to time or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction; , (so) shall not change its state of incorporation or organization, taxpayer identification number organization or Type of Organization; Organization and (t) will not change its legal name without providing the Agent Collateral Trustee with at least (30) 15 days’ prior written notice; and (p) shall pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all material taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral except where the failure to do so could not be reasonably expected to have a material adverse effect, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Debtor and such proceedings could not reasonably expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein. In addition, each Debtor shall maintain, and cause each of its Subsidiaries to maintain, insurance covering its properties and assets against loss or damage by fire and against such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability and business interruption insurance) and against other risks (including errors and omissions) in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable insurers, including self-insurance to the extent customary. If requested by the Agent to take similar action in respect of First Lien Obligations (as defined in the Intercreditor Agreement), each Debtor shall deliver to the Collateral Trustee (x) on the Closing Date and annually thereafter an original certificate of insurance signed by such Debtor’s independent insurance broker describing and certifying as to the existence of the insurance on the Collateral required to be maintained by this Agreement and the other Collateral Documents, and (y) from time to time upon the prior request of the Collateral Trustee a summary schedule indicating all insurance then in force with respect to such Debtor. Each Debtor shall deliver to the Collateral Trustee copies of such policies of insurance containing special endorsements (to the extent provided to the Agent in the cases of clauses (iii), (iv), (v), (vi), (viii) and (ix)), which shall (i) specify the Collateral Trustee as an additional insured, mortgagee and lender loss payee as its interests may appear, with the understanding that any obligation imposed upon the insured (including the liability to pay premiums) shall be the sole obligation of the applicable Debtor and not that of the Collateral Trustee and (ii) provide that no cancellation of such policies for any reason (including non-payment of premium) nor any change therein shall be effective until at least thirty (30) days (or ten (10) days in the case of non-payment of premiums) after receipt by the Collateral Trustee of written notice of such cancellation or change. The Company shall notify the Collateral Trustee of receipt of (i) any written notice from the Agent of an “Event of Default” under any of the Loan Documents or a written notice of demand for payment given to any Debtor, and (ii) any written notice sent by the Agent to any Debtor stating such party’s intention to exercise any material enforcement rights or remedies against such Debtor, including written notice pertaining to any foreclosure on all or any material part of the Collateral or other judicial or non-judicial remedy in respect thereof, and any legal process served or filed in connection therewith. Any reasonable expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by the Debtors. Whenever an Event of Default shall have occurred and be continuingexisting, subject to the provisions set forth in the Intercreditor Agreement, the Agent Collateral Trustee shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of shall, if requested by the Agent to take similar action in respect of First Lien Obligations (as defined in the Intercreditor Agreement), do any and all lawful acts and execute any and all proper documents required by the Agent Collateral Trustee in aid of such enforcement enforcement, and such Debtor shall promptly, upon written demand, reimburse and indemnify the Agent Collateral Trustee for all costs and reasonable out-of-pocket expenses incurred by the Agent Collateral Trustee in the exercise of its rights under this Section 6. Notwithstanding the foregoing, subject to Section 10 hereof, the Agent Collateral Trustee shall have no obligation or liability regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. To the extent Debtors use any of the proceeds from the Loans to purchase Collateral, Debtors’ repayment of the Loans shall apply on a “first-in-first-out” basis so that the portion of the Loans used to purchase a particular item of Collateral shall be paid in the chronological order the Debtors purchased the Collateral.
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Samples: Notes Security Agreement (Protection One Alarm Monitoring Inc)
