Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodian) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. (b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above. (c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender. (d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16. (e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents. (f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, Exhibit C hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 that were previously included in the Borrowing Base become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence (provided, however, that for Accounts that are categorized under Section 1.42(b), Borrower shall notify Lender of such occurrence within fourteen (14) days) and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding reasonable attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (National Diagnostics Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, and such other locations as Borrowers shall not, without thirty identify to Agent upon ten (3010) calendar days prior written notice to Lender, be moved therefrom other than to another such locationnotice, and in any case shall not be moved outside the continental United States.
(b) Each Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Agent on such periodic bases as Agent may request. Each In addition, if Accounts of any Borrower in an aggregate face amount in excess of $200,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrowers shall notify Agent of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Agent, after the occurrence and during the continuance of an Event of Default, Borrowers shall execute and deliver to Agent formal written assignments of all of its Accounts weekly or daily as Agent may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying last assignment, together with copies of claims, invoices and/or other information related thereto. Subject to the Senior Mortgage/Revolving Lender Intercreditor Agreement, to the extent that collections from such assigned accounts exceed the amount of the Obligations, such excess amount shall not accrue interest in favor of Borrowers, but shall be available to Borrowers upon Borrowers' written request and so long as the Senior Mortgage Loan shall remain outstanding, shall be disbursed on each Business Day to the Senior Mortgage Loan Blocked Account. All Accounts shall.
(c) Whether or not an Event of Default has occurred, regardless any of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of LenderAgent's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender or Borrower Agent or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower; provided that unless an Event of Default has occurred and is continuing, such verification shall only verify account balances and shall not give notice of Agent's security interest. Each of Borrower and each Foreclosure Subsidiary Borrowers shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, each Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for LenderAgent. Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrowers other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Agent and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrowers, and (ii) Medicaid/Medicare Account Debtors that Borrowers have waived any and all defenses and counterclaims they may have or could interpose in any such action or procedure brought by Agent to obtain a court order recognizing the collateral assignment or security interest and lien of Agent in and to any Account or other Collateral payable by Medicaid/Medicare Account Debtors and that Agent is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Agent in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(be) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each Borrowers and Guarantors (the results of Borrower which are to be consistent with Borrowers' representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrowers' expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is any Borrower and/or any Guarantors are organized and/or maintains its maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above, provided that unless an Event of Default shall have occurred and during the continuance thereof, the Borrowers shall not be required to pay for more than one such search in any fiscal quarter under clause (i) and clause (ii) above.
(cf) Upon LenderBorrowers (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than a Private Pay Debtor) directing them to make payments to the appropriate Lockbox Account, and Borrowers hereby authorizes Agent, upon any failure to send such notice and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor (other than a Private Pay Debtor)), to send any and all similar notices and directions to such Account Debtors and (iii) shall do such further acts and deeds that may be lawfully required by Agent to make, create, maintain, continue or perfect Agent's security interest in the Lockbox Accounts or the Collateral. At Agent's request, each of Borrower and each Foreclosure Subsidiary Borrowers shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, Collateral except for promissory notes in each case to a principal amount less than $100,000 provided that the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments aggregate principal amount of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but promissory notes shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or$500,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence (or immediately upon Borrower's preparation of a monthly aging schedule if the reason for ineligibility is that the Account has remained unpaid for longer than to another such locationthe applicable period for Qualified Accounts), and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateral, and effectuate the intentions of the Loan Documentsincluding attorneys' fees to Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Raintree Healthcare Corp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Accounts) will at all times be kept by Borrower at the locations (including warehouses) set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of and upon Lender’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrower’s representations and warranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower maintains its executive offices, a place of business or assets or in which they are organized; and (ii) judgment and federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on its current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) As of the Closing Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 5.3) and Borrowers shall give notice to Lender promptly (but in any event not later than the delivery by Borrowers of the next Borrowing Certificate required pursuant to Section 2.4 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including securities accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, securities account or commodities account of Borrowers is maintained).
(h) Borrowers will conduct a physical count of the Inventory at least twice per year and at such other times as Lender requests, and Borrowers shall provide to Lender a written accounting of such physical count in form and substance satisfactory to Lender. Each Borrower will use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports in form and substance and from appraisers reasonably satisfactory to Lender stating the then current fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries.
(i) In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports, at the Borrower’s expense, in form and substance and from appraisers reasonably satisfactory to Lender stating the then current Orderly Liquidation Values, as required by the Lender, and fair market values of all or any portion of Inventory, Intellectual Property and furniture, fixtures and equipment owned by each Foreclosure Subsidiary hereby agrees Borrower or any Subsidiaries.
(j) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the ordinary course of business, made while no Default exists and in amounts which are not material with respect to take the following protective actions Account and which, after giving effect thereto, do not cause the Borrowing Base to prevent destruction be less than the Revolving Loans outstanding) without the prior written consent of records pertaining Lender. Without limiting the generality of this Agreement or any other provisions of any of the Loan Documents relating to such Person's Collateralthe rights of Lender after the occurrence and during the continuance of an Event of Default, Lender shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(k) Without limiting the generality of Sections 2.10(g) and (j):
(A) Borrowers shall deliver to Lender all tangible Chattel Paper and all Instruments and documents owned by any Borrower and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall provide Lender with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral by having Lender identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Lender all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will xxxx conspicuously all such Chattel Paper and all such Instruments and documents with a legend, in form and substance satisfactory to Lender, indicating that such Chattel Paper and such instruments and documents are subject to the security interests and Liens in favor of Lender created pursuant to this Agreement and the Security Documents.
(B) Borrowers shall deliver to Lender all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall take any and all actions as may be necessary or desirable, or that Lender may request, from time to time, to cause Lender to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Lender.
(C) Borrowers shall promptly advise Lender upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral, which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Lender such documents as Lender shall request to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to any such commercial tort claim.
(D) Except for Accounts and Inventory in an aggregate amount of $25,000, no Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Lender has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such Person maintains its possession or control; provided, however, that for Collateral records on a manual system located at the Creekside Springs, LLC facilities no such records consent shall be kept in a fire proof cabinet or on no less than a monthly basisrequired unless the value of the Collateral exceeds $30,000 at any time; provided, a record further, that for Collateral located at the Unix Packaging, Inc. facility the value of all payments on Accounts and all other matters relating to the Collateral shall not exceed $250,000 at any time. Borrower has notified Lender that Inventory is currently located at the locations set forth on Schedule 5.18. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person to hold all such Collateral for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such Person that such Person holds the Collateral for Lender’s benefit.
(E) Borrowers shall cause all equipment and other tangible Personal Property other than Inventory to be placed maintained and preserved in an off-site safety deposit box (the same condition, repair and Lender in working order as when new, ordinary wear and tear excepted, and shall have access promptly make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable to such safety deposit boxend. Upon request of Lender, Borrowers shall promptly deliver to Lender any and all certificates of title, applications for title or similar evidence of ownership of all such tangible Personal Property and shall cause Lender to be named as lienholder on any such certificate of title or other evidence of ownership. Borrowers shall not permit any such tangible Personal Property to become fixtures to real estate unless such real estate is subject to a Lien in favor of Lender.
(F) Each Borrower acknowledges that Lender is authorized to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Lender as the “secured party” and such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the Loan Documents (including an indication of the collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired); or, in such jurisdictions as Lender from time to time determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Lender to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to the Collateral. Each Borrower also ratifies its authorization for Lender to have filed in any jurisdiction any initial UCC financing statements or amendments thereto if filed prior to the date hereof.
(G) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Lender in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. If any Collateral at any time constitutes a claim against a Governmental Authority, upon the request of Lender, Borrowers shall take such steps as may be necessary or desirable, or that Lender may request, to comply with any such applicable Law.
(H) Borrowers shall furnish to Lender from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Lender may reasonably request from time to time.
Appears in 1 contract
Samples: Credit and Security Agreement (ALKALINE WATER Co INC)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will shall at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and ------------- shall not, not be moved from such locations without thirty (30i) calendar days providing prior written notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior written consent of Lender, be moved therefrom other than to another such location, and in any case which consent shall not be moved outside unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the continental United Statespreceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts on a quarterly basis, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (New York Health Care Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $35,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence with the next succeeding Borrowing Certificate containing an aging report as required in Section 2.4, and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and or during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, ’s lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender’s request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Occupational Health & Rehabilitation Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianControlled Deposit Accounts) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, 5.17B (including warehouses) hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender Borrowers shall in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall material respects keep accurate and complete records of the Collateral their Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary upon Lender’s request, Borrowers shall execute and deliver to Lender, Lender formal written assignments of all of its their Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrowers, but shall be available to Borrower Borrowers upon Borrowers’ written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrowers, to verify the validity, amount or any other matter relating to any Accounts. Borrowers shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrowers that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrowers.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrowers and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrowers’ representations and warranties under this Agreement), at Borrowers’ reasonable expense: (i) UCC searches with the Secretary of State or local filing offices of the state where each Borrower is organized; and (ii) bankruptcy, judgment, federal, state and local tax lien and litigation searches, in each jurisdiction in which such actions, or Liens may be recorded.
(f) Borrowers (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on their current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Controlled Deposit Account to the extent required by as set forth in Section 2.5, and Borrowers hereby authorizes authorize Lender, upon any failure to send such directionsnotices and directions within ten (10) days after the date of this Agreement (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orand
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower Borrowers at the locations their respective principal office(s) as set forth on Schedule 5.18B hereto4.15(a) or at the principal office of Ensign Facility Services, Inc. as set forth on Schedule 4.15(a) and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Each Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $100,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise (excepting those Accounts which become ineligible merely by reason of their age, for which no such notification is required), Borrowers shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender after the occurrence and during the continuation of an Event of Default, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender weekly formal written assignments of all of its Accounts, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrowers, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary Borrowers shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, each Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and actual expenses, in the Collateralincluding attorneys’ fees, and effectuate the intentions of the Loan Documentsto Borrowers.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule SCHEDULE 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to LenderAgent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Agent on such periodic bases as Agent may request. Each In addition, if Borrower has actual knowledge that Accounts of Borrower in an aggregate face amount in excess of $50,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Agent of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Agent after an Event of Default, Borrower shall execute and deliver to Agent formal written assignments of all of its Accounts weekly or daily as Agent may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower but shall be available to Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any any of Lenderthe Agent's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender Agent or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for LenderAgent, for the account of Lenders. Agent shall have the right at all times after the occurrence of an Event of Default and after written notice to Borrower to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Agent, for the benefit of itself and Lenders, and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(be) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is Borrower and/or any Guarantors (A) are organized and/or maintains its and (B) maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon LenderBorrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Agent has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account (unless such notices have already been sent), and Borrower hereby authorizes Agent and/or Lenders, upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Agent and/or any Lender to secure Agent, for the benefit of itself and Lenders, and effectuate the intentions of the Loan Documents. At Agent's request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paperchattel paper, warehouse receipts, Instrumentsinstruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Gardenburger Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianDepository Account) will at all times be kept by the applicable Borrower at the locations its principal office(s) as set forth on Schedule 5.18B 4.15 hereto, or at the applicable Facility or Property (as the case may be), and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than to another such location, and therefrom.
(b) If Qualified Accounts in any case shall not be moved outside an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the continental United States. Each specified categories of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to ineligibility set forth in the Custodiandefinition of Qualified Accounts or otherwise, the Custodian Deliverables promptly but in Accounts Receivable Borrower shall notify Lender of such occurrence on the third Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. 31
(c) Whether or not an Event of Default has occurred, any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiarythe Borrower, to verify the validity, amount or any other matter relating to any Accounts of Accounts Receivable Borrowers by mail, telephone, telegraph or otherwise (provided, however, Lender agrees that prior to the Collateraloccurrence of an Event of Default, Lender agrees to verify any such matter in the name of the Parent or the applicable Accounts Receivable Borrower). Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, the Accounts Receivable Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Accounts Receivable Borrower. Notwithstanding the foregoing, Lender and Borrower acknowledge and agree that the Accounts Receivable Collateral shall be placed in an off-site safety deposit box (is subject to the Subordination Agreement by and among Meditrust, Lender shall have access to such safety deposit box); orand the Accounts Receivable Borrowers.
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will shall at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, not be moved from such locations without thirty (30i) calendar days providing prior written notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior written consent of Lender, be moved therefrom other than to another such location, and in any case which consent shall not be moved outside unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the continental United Statespreceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event shall notify Lender of such occurrence within five (5) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of any Advance made in respect all of its Accounts weekly or daily, which shall include all Accounts that have been created since the date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform shall have the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or right at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to notify Account Debtors (subject to applicable law regarding Medicaid/Medicare Account Debtors) that Accounts have been assigned to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of As between Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, Borrower shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien bear the risk of loss on and security interest inall Collateral, upon and to all Accounts payable by regardless of whether such Account DebtorCollateral is in the possession or control of Borrower, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note a bailee or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory Person, provided that Lender agrees to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender treat any Collateral in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept possession in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orcommercially reasonable manner.
Appears in 1 contract
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Custodianexcluding Lockbox Accounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may reasonably request. Each In addition, if after the Closing Date, Accounts of Borrower in an aggregate face amount in excess of $25,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts that are Eligible Receivables monthly as Lender may request, including all Accounts that are Eligible Receivables created since the Custodiandate of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the Custodian Deliverables extent that collections from such assigned accounts exceed the amount of the Obligations, such excess amount shall not accrue interest in favor of Borrower, but shall be promptly but provided to Borrower (and in any event within five two (52) Business Days of Lender’s receipt).
(c) Whether or not an Event of Default has occurred, any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default (i) to notify Account Debtors owing Accounts that are Eligible Receivables to Borrower that their Accounts have been assigned to Lender and (ii) to collect such Accounts directly in its own name and to charge its reasonable and actual collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(be) As Prior to the Closing, as and when determined by Lender in its sole discretionPermitted Discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: any Guarantor (the results of which are to be consistent with Borrower’s representations): (i) UCC searches with the Secretary of State and local filing offices offices, as necessary, of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or any Guarantor maintains its respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above. After the Closing, as and when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (x) and (y) below against Borrower and Guarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), not more often than quarterly at Borrower’s expense, unless a Default or an Event of Default has occurred and is continuing in which case such searches shall be conducted as often as Lender deems reasonably appropriate at Borrower’s expense: (x) UCC searches with the Secretary of State and local filing offices, as necessary, of each jurisdiction where Borrower and/or any Guarantor is incorporated or formed; and (y) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower and/or any Guarantor maintain its respective executive offices, a place of business or assets.
(cf) Upon Borrower (i) shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender's , upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, (ii) shall provide prompt written notice to its current bank to transfer all items, collections and remittances in the Lockbox Accounts to the Concentration Account, (iii) after the occurrence and during the continuance of an Event of Default and upon Lender’s request, shall provide prompt written notice to each Account Debtor that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and (iv) shall do anything further that may be lawfully and reasonably required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender’s request, Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Women First Healthcare Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, -------------- without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep commercially reasonable accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as may reasonably request (but unless an Event of Default has occurred and is continuing, not more frequently than monthly). In addition, if (i) Accounts of Borrower in an aggregate face amount in excess of $40,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables and (ii) Borrower has borrowed fifty percent (50%) or more of its Availability and such amount is currently outstanding, then Borrower shall notify Lender may request in its sole discretionof such occurrence on the first Business Day following Borrower's knowledge thereof and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower which, prior to the occurrence or continuation of a Default or Event of Default shall not include the right to contact Borrower's customers or account debtors. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement) once per calendar quarter prior to the occurrence and continuation of any Default or Event of Default at Borrower's expense, and following the occurrence and continuation of a Default or Event of Default, as often as Lender reasonably shall deem appropriate, all at Borrower's expense:
(i) UCC searches in the state of Borrower's formation; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor) after the occurrence and during the continuance of an Event of Default, to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Americas Power Partners Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, 3.3(a) and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys’ fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Sunlink Health Systems Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B heretohereto or in transit to and from such locations (other than immaterial property, the nature and use of which reasonably requires its location at other sites) and shall not, without thirty twenty (3020) calendar days prior written notice to Lender, be moved therefrom (other than to another such location), and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to the Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Unless a Default or Event of Default exists and is continuing, (i) Lender shall not charge Borrower more than four (4) times per calendar year for such verification processes and (ii) Lender shall give Borrower reasonable notice before commencing such verification processes.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i) and (ii) below against Borrower and Guarantors, all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintains their respective executive offices, a place of business or assets; and (ii) lien searches with the United States Patent and Trademark Office and the Untied States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above. So long as no Default or Event of Default exists, Borrower shall only be required to pay for four (4) such searches in any calendar year.
(f) Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall upon the receipt occurrence and during the continuation of written notice from Lenderan Event of Default, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, and upon any failure to send such notices, Borrower hereby authorizes Lender to send any and all similar notices to such Account Debtors, (iiiii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsdirections within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, ’s lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender’s request, Borrower and each Foreclosure Subsidiary hereby agrees shall promptly deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (World Health Alternatives Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may reasonably request. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may reasonably request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under Lender's dominion and control and deemed to be in Lender's possession. Any Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(be) As and when determined by Lender in its sole discretionPermitted Discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or maintains its any Guarantors maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender's , upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to create and perfect Lender’s lien on any collateral and effectuate the intentions of the Loan Documents. At Lender’s request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Boston Biomedica Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Accounts) will at all times be kept by Borrower at the locations (including warehouses) set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of and upon Lender’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrower’s representations and warranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower maintains its executive offices, a place of business or assets or in which they are organized; and (ii) judgment and federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on its current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) As of the Closing Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 5.3) and Borrowers shall give notice to Lender promptly (but in any event not later than the delivery by Borrowers of the next Borrowing Certificate required pursuant to Section 2.4 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including securities accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, securities account or commodities account of Borrowers is maintained).
(h) Borrowers will conduct a physical count of the Inventory at least once per year and at such other times as Lender requests, and Borrowers shall provide to Lender a written accounting of such physical count in form and substance satisfactory to Lender. Each Borrower will use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports in form and substance and from appraisers reasonably satisfactory to Lender stating the then current fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries.
(i) In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports, at the Borrower’s expense, in form and substance and from appraisers reasonably satisfactory to Lender stating the then current Orderly Liquidation Values, as required by the Lender, and fair market values of all or any portion of Inventory, Intellectual Property and furniture, fixtures and equipment owned by each Foreclosure Subsidiary hereby agrees Borrower or any Subsidiaries.
(j) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the ordinary course of business, made while no Default exists and in amounts which are not material with respect to take the following protective actions Account and which, after giving effect thereto, do not cause the Borrowing Base to prevent destruction be less than the Revolving Loans outstanding) without the prior written consent of records pertaining Lender. Without limiting the generality of this Agreement or any other provisions of any of the Loan Documents relating to such Person's Collateralthe rights of Lender after the occurrence and during the continuance of an Event of Default, Lender shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(k) Without limiting the generality of Sections 2.10(g) and (j):
(A) Borrowers shall deliver to Lender all tangible Chattel Paper and all Instruments and documents owned by any Borrower and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall provide Lender with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral by having Lender identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Lender all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will xxxx conspicuously all such Chattel Paper and all such Instruments and documents with a legend, in form and substance satisfactory to Lender, indicating that such Chattel Paper and such instruments and documents are subject to the security interests and Liens in favor of Lender created pursuant to this Agreement and the Security Documents.
(B) Borrowers shall deliver to Lender all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall take any and all actions as may be necessary or desirable, or that Lender may request, from time to time, to cause Lender to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Lender.
(C) Borrowers shall promptly advise Lender upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral, which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Lender such documents as Lender shall request to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to any such commercial tort claim.
(D) Except for Accounts and Inventory in an aggregate amount of $25,000, no Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Lender has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such possession or control. Borrower has notified Lender that Inventory is currently located at the locations set forth on Schedule 5.18. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person maintains its to hold all such Collateral records on a manual system for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such records Person that such Person holds the Collateral for Lender’s benefit.
(E) Borrowers shall cause all equipment and other tangible Personal Property other than Inventory to be kept maintained and preserved in a fire proof cabinet the same condition, repair and in working order as when new, ordinary wear and tear excepted, and shall promptly make or on no less than a monthly basiscause to be made all repairs, a record replacements and other improvements in connection therewith that are necessary or desirable to such end. Upon request of Lender, Borrowers shall promptly deliver to Lender any and all certificates of title, applications for title or similar evidence of ownership of all payments such tangible Personal Property and shall cause Lender to be named as lienholder on Accounts and all any such certificate of title or other matters evidence of ownership. Borrowers shall not permit any such tangible Personal Property to become fixtures to real estate unless such real estate is subject to a Lien in favor of Lender.
(F) Each Borrower acknowledges that Lender is authorized to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Lender as the “secured party” and such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the Loan Documents (including an indication of the collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Lender from time to time determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Lender to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to the Collateral. Each Borrower also ratifies its authorization for Lender to have filed in any jurisdiction any initial UCC financing statements or amendments thereto if filed prior to the date hereof.
(G) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Lender in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. If any Collateral at any time constitutes a claim against a Governmental Authority, upon the request of Lender, Borrowers shall take such steps as may be placed in an off-site safety deposit box necessary or desirable, or that Lender may reasonably request, to comply with any such applicable Law.
(H) Borrowers shall furnish to Lender from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Lender shall have access may reasonably request from time to such safety deposit box); ortime.
Appears in 1 contract
Collateral Administration. (a) All Except for removal off-site for equipment repairs, all Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at any of the locations set forth on Schedule 5.18B hereto, and may be moved from one such location to another such location; provided, however, that Collateral shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom to locations other than to another such locationthose set forth on Schedule 5.18B, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may reasonably request. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the third Business Day after Borrower obtains knowledge thereof and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under LenderBorrower upon Borrower's dominion and control and deemed to be written request in Lender's possession. Any accordance with Section 2.4.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that its Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or any Guarantors maintains its their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances received by Borrower or a Dental Center to the Concentration Account, and (ii) during an Event of Default, shall provide prompt written notice to each commercial insurance Account Debtor that shall direct each commercial insurance Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten (10) calendar days after the Event of Default (or ten (10) calendar days after the Person becomes a commercial insurance Account Debtor), to send any and all similar notices and directions to such commercial insurance Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Coast Dental Services Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, SCHEDULE 4.15 and shall not, without thirty (30) calendar days the prior written notice to Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall reasonably request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $100,000.00 have become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each If requested by Lender, upon an Event of Default, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion invoices or other information related thereto.
(c) Upon the occurrence and control and deemed to be in Lender's possession. Any during the continuance of an Event of Default, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower Default to notify Account Debtors that Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge the collection costs and expenses, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directionsattorneys' fees, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $100,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Billed Receivables or Eligible Unbilled Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(e) Each As and when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i) and (ii) below against Borrower and Guarantors (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense, provided that unless an Event of Default has occurred and during the continuance thereof, Borrower shall not pay for more than one such search per calendar quarter:
(i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and Guarantor and the Secretary of State and local filing offices of each Foreclosure Subsidiary jurisdiction where Borrower and/or any Guarantors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and state tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (1) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall, upon the receipt occurrence and during the continuance of written notice from Lenderan Event of Default, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, ; (iiiii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Western Express Holdings, Inc.)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following Borrower’s discovery of such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by : Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys’ fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, of the Disclosure Letter hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $20,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under Lender's dominion and control and deemed to be in Lender's possession. Any the Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or any Guarantors maintains its their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender's , upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender’s request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Access Worldwide Communications Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the its principal office(s) or at such other locations as identified to Lender, all as set forth on Schedule 5.18B hereto, SCHEDULE 4.15 and shall not, without at least thirty (30) calendar days prior written notice to Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall reasonably request a collections report for the preceding period, in form reasonably satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts, Borrower shall notify Lender of such occurrence on the first Business Day following the date on which Borrower first becomes aware of such occurrence, and in any case the Borrowing Base shall not thereupon be moved outside adjusted to reflect such occurrence. After the continental United States. Each occurrence and during the continuance of an Event of Default, if requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion invoices or other information related thereto.
(c) After an Event of Default has occurred, and control and deemed to be in Lender's possession. Any while it is continuing, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times thereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower to notify Account Debtors that Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge reasonable collection costs and expenses, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower reasonable attorneys' fees (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower including both outside and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions-house counsel), to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United StatesStates except for shipments of Inventory in the ordinary course of business.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $25,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto; provided, that as long as no Default or Event of Default shall have occurred Lender shall not request the assignment of Accounts more than once per calendar month. All To the extent that collections from such assigned Accounts shallexceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under Lender's dominion and control and deemed to be in Lender's possession. Any Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully reasonably with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each Borrower (the results of Borrower which are to be consistent with Borrower’s representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its Borrower maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office; and (iiiii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender's , upon any failure to send such notices and directions within ten (10) Business Days after the date of this Agreement or ten (10) Business Days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to create and perfect Lender’s lien on any collateral and effectuate the intentions of the Loan Documents. At Lender’s request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Rita Medical Systems Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal offices) as set forth on Schedule 5.18B hereto, 4.15 hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $150,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If reasonably requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion invoices or other information related thereto.
(c) If an Event of Default has occurred and control and deemed to be in Lender's possession. Any is continuing, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Odyssey Healthcare Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, EXHIBIT D hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Qualified Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of Borrower If requested by Xxxxxx, Xxxxxxxx shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateral, and effectuate the intentions of the Loan Documentsincluding reasonable attorneys' fees to Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will shall at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, not be moved from such locations without thirty (30i) calendar days providing prior written notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior written consent of Lender, be moved therefrom other than to another such location, and in any case which consent shall not be moved outside unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the continental United Statespreceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform shall have the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or right at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to notify Account Debtors (subject to applicable law regarding Medicaid/Medicare Account Debtors) that Accounts have been assigned to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each Borrower shall bear the risk of Borrower and each Foreclosure Subsidiary (i) upon loss on all Collateral, regardless of whether such Collateral is in the receipt possession or control of written notice from Borrower, Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note bailee or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsPerson.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Star Multi Care Services Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but States except as provided for in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lenderthis Agreement.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretionPermitted Discretion. In addition, if Accounts of Borrower in an aggregate face amount in excess of $100,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on or before the third (3rd) Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or as often as Lender may reasonably request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right upon three (3) Business Days' prior written notice to Borrower, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintains their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) below.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Synavant Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than unless Lender has entered into the necessary documents to another perfect and enforce its security interest therein at such new location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $30,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after Following the occurrence and during the continuation continuance of an Event of Default, each of if requested by Lender, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments (or, in the case of Medicaid/Medicare Account Debtors, documents necessary to comply with the Federal Assignment of Claims Act) of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower's written request.
(c) Following an occurrence or during the continuance of an Event of Default, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each As and when determined by Lender in its sole discretion but not more often than four (4) times per year prior to the occurrence and continuance of Borrower and each Foreclosure Subsidiary an Event of Default, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver or make arrangements to take the following protective actions deliver to prevent destruction of records pertaining Lender all items for which Lender must receive possession to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Millstream Acquisition Corp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower Obligors at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary Obligor shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in an aggregate face amount in excess of $25,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the third Business Day after Borrower or any one of its sole discretionofficers, directors or members of senior management becomes aware of it and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower, but Lender shall remit the amount of such excess to Borrower within two Business Days.
(except as provided c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in the Blocked name of Lender, any designee of Lender or either Obligor, to verify the validity, amount or any other matter relating to any Accounts of either Obligor. Obligors shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Obligors shall endeavor in the first instance to make collection of its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Agreements) but shall be available Debtors owing Accounts to Borrower either Obligor that their Accounts have been assigned to Lender and to collect such Accounts directly in accordance with the terms of Section 2.16its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Obligors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Obligors (the receipt results of which are to be consistent with Obligors' representations and warranties under this Agreement), all at Obligors' expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Obligors and the Secretary of State and local filing offices of each jurisdiction where Obligors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Each Obligor (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and each Obligor hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten calendar days after the date of this Agreement (or ten calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and . At Lender's request, each Foreclosure Subsidiary hereby agrees Obligor shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Sunset Brands Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $10,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours and, upon reasonable advance notice to Borrower if no Event of Default has occurred and is continuing, in accordance the name of Lender, any designee of Lender or Borrower, to review the books and records of Borrower verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(e) Each As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against Borrower (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and the Secretary of State and local filing offices of each Foreclosure Subsidiary jurisdiction where Borrowers maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) upon the receipt of above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) Business Days after the date of this Agreement (or ten (10) Business Days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, ’s lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender’s request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Derma Sciences, Inc.)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, SCHEDULE 4.15 hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence (or immediately upon Borrower's preparation of a monthly aging schedule if the reason for ineligibility is that the Account has remained unpaid for longer than to another such locationthe applicable period for Qualified Accounts), and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateral, and effectuate the intentions of the Loan Documentsincluding attorneys' fees to Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Raintree Healthcare Corp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence as soon as possible but no later than the third Business Day following Borrower's knowledge of such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, following the occurrence of an Event of Default, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, Exhibit C hereto and shall --------- not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all -Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (International Nursing Services Inc)
Collateral Administration. (a) All Except as permitted pursuant to Sections 7.8(a) and 7.8(b), all Collateral (except Deposit Accounts and Collateral in the possession having an aggregate value of Custodian$50,000 or less at any one location) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B 5.4 hereto, which may be amended from time to time, and shall not, without thirty (30) calendar days prior written notice to LenderAgent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each Whether or not an Event of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the CustodianDefault has occurred, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's Agent’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender Agent, or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each Notwithstanding anything in this subsection to the contrary, Agent shall have the right at all times after the occurrence and during the continuation of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and each Foreclosure Subsidiary shall endeavor to collect such Accounts directly in the first instance its own name and to make charge collection of its respective Accounts for Lendercosts and expenses, including reasonable attorney’s fees, to Borrower.
(b) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: or any Guarantor (the results
(i) UCC upon Borrower’s request and at Borrower’s expense, provide copies of any such searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; to Borrower and (ii) judgment, federal tax lien and corporate and partnership tax lien will use a search service with which Agent has a discount arrangement in an effort to minimize the expense of such searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's Agent’s request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases as Lender Agent may request in its sole discretionPermitted Discretion. If requested by Lender upon In addition, if Accounts of Borrower in an aggregate face amount in excess of $500,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Billed Receivables or at any time after Eligible Unbilled Receivables, Borrower shall notify Agent of such occurrence within two (2) Business Days following its discovery of such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. After the occurrence and during the continuation of an Event of Default, each of and upon Agent’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Agent formal written assignments of all of its Accounts weekly or daily as Lender Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, and to any Account Debtor not remitting to the Blocked Account, to do so promptly, (ii) after the occurrence and during the continuation of an Event of Default, and upon Agent’s request, shall provide prompt written notice to each Account Debtor that Lender Agent has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) and shall direct or shall have directed each Account Debtor to make payments directly to the appropriate Blocked Account to the extent required by Section 2.5, Lender’s Concentration Account; and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion Agent to secure Lender's interestAgent, in for the Collateralbenefit of itself and Lenders, and to effectuate the intentions of the Loan Documents.
(f) Each . Borrower hereby authorizes Agent, for purposes of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: clause (i) if hereof, upon any failure to send such notices and directions within twenty (20) calendar days after the date of this Agreement (or twenty (20) calendar days after the Person maintains its Collateral records on a manual system becomes an Account Debtor), and for purposes of clause (ii) hereof, promptly following the occurrence and continuation of such records shall be kept in a fire proof cabinet or on no less than a monthly basisEvent of Default, a record of all payments on Accounts to send any and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (similar notices and Lender shall have access directions to such safety deposit box); orAccount Debtors.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (America Service Group Inc /De)
Collateral Administration. (a) All Subject to Section 6.15 all Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, EXHIBIT C of this Agreement and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request account receivable aging summaries for the preceding period, and in any case shall not be moved outside the continental United Statesform previously delivered to Lender. Each In addition, if Accounts in an aggregate face amount in excess of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event $50,000.00 become ineligible because they fall within five (5) Business Days of any Advance made in respect one of the underlying Account. All specified categories of ineligibility set forth in the definition of Qualified Accounts shallor otherwise, regardless Borrower shall notify Lender of their locationsuch occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence.
(c) Whether or not an Event of Default has occurred, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Allion Healthcare Inc)
Collateral Administration. (a) All Except as permitted pursuant to Sections 7.8(a) and 7.8(b), all Collateral (except Deposit Accounts and Collateral in the possession having an aggregate value of Custodian$50,000 or less at any one location) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B 5.4 hereto, which may be amended from time to time, and shall not, without thirty (30) calendar days prior written notice to LenderAgent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each Whether or not an Event of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the CustodianDefault has occurred, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of LenderAgent's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender Agent, or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each Notwithstanding anything in this subsection to the contrary, Agent shall have the right at all times after the occurrence and during the continuation of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and each Foreclosure Subsidiary shall endeavor to collect such Accounts directly in the first instance its own name and to make charge collection of its respective Accounts for Lendercosts and expenses, including reasonable attorney's fees, to Borrower.
(b) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each Borrower or any Guarantor (the results of Borrower which are to be consistent with Borrower's representations and each Foreclosure Subsidiarywarranties under this Agreement), on a quarterly basis at Borrower's expense, unless an Event of Default has occurred and is continuing in which case such searches shall be conducted as often as Agent deems reasonably appropriate at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or maintains its executive offices, a place of business or assetsany Guarantors are organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above, and in any jurisdiction where Borrower or Guarantors maintain their respective offices or place of business or material assets to the extent that the UCC would permit a filing in such jurisdiction to attach a security interest in or Lien upon any Collateral. Agent will
(i) upon Borrower's request and at Borrower's expense, provide copies of any such searches to Borrower and (ii) will use a search service with which Agent has a discount arrangement in an effort to minimize the expense of such searches.
(c) Upon LenderAgent's request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases as Lender Agent may request in its sole discretionPermitted Discretion. If requested by Lender upon In addition, if Accounts of Borrower in an aggregate face amount in excess of $500,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Billed Receivables or at any time after Eligible Unbilled Receivables, Borrower shall notify Agent of such occurrence within two (2) Business Days following its discovery of such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. After the occurrence and during the continuation of an Event of Default, each of and upon Agent's request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Agent formal written assignments of all of its Accounts weekly or daily as Lender Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, and to any Account Debtor not remitting to the Blocked Account, to do so promptly, (ii) after the occurrence and during the continuation of an Event of Default, and upon Agent's request, shall provide prompt written notice to each Account Debtor that Lender Agent has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) and shall direct or shall have directed each Account Debtor to make payments directly to the appropriate Blocked Account to the extent required by Section 2.5, Lender's Concentration Account; and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion Agent to secure Lender's interestAgent, in for the Collateralbenefit of itself and Lenders, and to effectuate the intentions of the Loan Documents.
(f) Each . Borrower hereby authorizes Agent, for purposes of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: clause (i) if hereof, upon any failure to send such notices and directions within twenty (20) calendar days after the date of this Agreement (or twenty (20) calendar days after the Person maintains its Collateral records on a manual system becomes an Account Debtor), and for purposes of clause (ii) hereof, promptly following the occurrence and continuation of such records shall be kept in a fire proof cabinet or on no less than a monthly basisEvent of Default, a record of all payments on Accounts to send any and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (similar notices and Lender shall have access directions to such safety deposit box); orAccount Debtors.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (America Service Group Inc /De)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $250,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Intensiva Healthcare Corp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its notify Account Debtors that Accounts as have been assigned to Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all collect Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor directly in its own name and to make payments to charge the appropriate Blocked Account to the extent required by Section 2.5, reasonable collection costs and hereby authorizes Lender, upon any failure to send such directionsexpenses,including reasonable attorneys' fees, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 hereto and shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Medical Asset Management Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will shall at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, not be moved from such locations without thirty (30i) calendar days providing prior written notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior written consent of Lender, be moved therefrom other than to another such location, and in any case which consent shall not be moved outside unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the continental United Statespreceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform shall have the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or right at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to notify Account Debtors (subject to applicable law regarding Medicaid/Medicare Account Debtors) that Accounts have been assigned to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each Borrower shall bear the risk of Borrower and each Foreclosure Subsidiary (i) upon loss on all Collateral, regardless of whether such Collateral is in the receipt possession or control of written notice from Borrower, Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note bailee or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsPerson.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Southland Health Services, Inc.)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAgent) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to LenderAgent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each Whether or not an Event of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the CustodianDefault has occurred, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of LenderAgent's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender Agent or Borrower or any Foreclosure SubsidiaryBorrowers, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary Borrowers shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each In addition to and notwithstanding any provision of Borrower any Loan Document, Agent shall have the right at all times after the occurrence and each Foreclosure Subsidiary during the continuance of an Event of Default to notify Persons owing Accounts to Borrowers that their Accounts have been assigned to Agent and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrowers. Borrowers shall endeavor in the first instance to make collection of its their respective Accounts for LenderAgent, for the account of Lenders.
(b) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each Borrowers (the results of Borrower which are to be consistent with Borrowers' representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrowers' expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is any Borrower and/or any Guarantors are organized and/or maintains its maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon LenderAgent's request, each of Borrower and each Foreclosure Subsidiary Borrowers shall promptly deliver to Lender or Custodian Agent all items for which Lender Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lenderAgent.
(d) Each of Borrower Borrowers shall, and each Foreclosure Subsidiary shall cause their Subsidiaries to, keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases as Lender Agent may request in its sole discretionPermitted Discretion. In addition, if Accounts of Borrowers in an aggregate face amount in excess of $100,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrowers shall notify Agent of such occurrence no later than five (5) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. In addition, if any Eligible Equipment of Borrower the purchase of which was in part funded by any Draw, becomes ineligible because it falls within one of the specified categories of ineligibility set forth in the definition of Eligible Equipment, Borrowers shall notify Agent of such occurrence within five (5) Business Days following such occurrence. If requested by Lender Agent upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary Borrowers shall execute and deliver to LenderAgent, and shall cause each of their Subsidiaries to execute and deliver, formal written assignments of all of its their respective Accounts as Lender Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrowers but shall be available to Borrower Borrowers upon written request in accordance with the terms of Section 2.16this Agreement.
(e) Each of Borrower and each Foreclosure Subsidiary Borrowers (i) upon the receipt of shall provide prompt written notice from Lenderto their current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender Agent, for itself and the benefit of the Lenders, has been granted a Lien on lien and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account, in each case not later than (A) ten (10) calendar days after the occurrence of an Event of Default, or (B) ten (10) calendar days after the Person becomes an Account to the extent required by Section 2.5Debtor, and hereby authorizes Lenderauthorize Agent and/or Lenders, upon any failure to send such directionsdirections within the applicable time period, to send any and all similar directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender Agent in its Permitted Discretion to secure Lender's interestAgent, in for the Collateralbenefit of itself and Lenders, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit, Term Loan, and Security Agreement (Advanced Nutraceuticals Inc/Tx)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep commercially reasonable accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may reasonably request (but unless an Event of Default has occurred and is continuing, not more frequently than monthly). In addition, if (i) Accounts of Borrower in an aggregate face amount in excess of $40,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables and (ii) Borrower has borrowed fifty percent (50%) or more of its sole discretionAvailability and such amount is currently outstanding, then Borrower shall notify Lender of such occurrence on the first Business Day following Borrower’s knowledge thereof and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower which, prior to the occurrence or continuation of a Default or Event of Default shall not include the right to contact Borrower’s customers or account debtors. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower (the receipt results of which are to be consistent with Borrower’s representations and warranties under this Agreement) once per calendar quarter prior to the occurrence and continuation of any Default or Event of Default at Borrower’s expense, and following the occurrence and continuation of a Default or Event of Default, as often as Lender reasonably shall deem appropriate, all at Borrower’s expense: (i) UCC searches in the state of Borrower’s formation; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor) after the occurrence and during the continuance of an Event of Default, to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Americasdoctor Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Accounts) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, 5.17B hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary Borrowers shall keep accurate and complete records of the Collateral their Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary upon Lender’s request, Borrowers shall execute and deliver to Lender, Lender formal written assignments of all of its their Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrowers, but shall be available to Borrowers upon Borrowers’ written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrowers, to verify the validity, amount or any other matter relating to any Accounts of Borrowers; provided, however, Lender shall provide Borrower with 24 hours prior notice, unless such prior notice is otherwise waived by Borrower, before Lender may visit any of Borrower’s offices or properties or any other place where Collateral is located for the purpose set forth in accordance this Section unless such visit is otherwise permitted hereunder or pursuant to the other Loan Documents; provided, further, upon the occurrence and during the continuance of an Event of Default, Lender shall not be required to give such prior notice to any Borrower. Borrowers shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify (i) Account Debtors owing Accounts to Borrowers other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrowers, and (ii) Medicaid/Medicare Account Debtors that Borrowers have waived any and all defenses and counterclaims it may have or could interpose in any action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrowers and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrowers’ representations and warranties under this Agreement), at Borrowers’ reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrowers maintain their respective executive offices, a place of business or assets or in which they are organized; and (ii) bankruptcy, judgment, federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrowers (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on their current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrowers hereby authorizes authorize Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) No Accounts or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Lender has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such possession or control. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person to hold all such Collateral for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such Person that such Person holds the Collateral for Lender’s benefit.
(h) Each Borrower acknowledges that Lender is authorized to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Lender as the “secured party” and each Foreclosure Subsidiary hereby agrees such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the Loan Documents (including an indication of the collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Lender from time to take time determines are appropriate, and to file without the following protective actions signature of such Borrower any continuations of or corrective amendments to prevent destruction any such financing statements, in any such case in order for Lender to perfect, preserve or protect the Liens, rights and remedies of records pertaining Lender with respect to such Person's the Collateral: .
(i) if such Person maintains its Collateral records on a manual system such records Borrowers shall be kept in a fire proof cabinet furnish to Lender from time to time any statements and schedules further identifying or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to describing the Collateral shall be placed in an off-site safety deposit box (and any other information, reports or evidence concerning the Collateral as Lender shall have access may reasonably request from time to such safety deposit box); ortime.
Appears in 1 contract
Samples: Credit and Security Agreement (Interpace Diagnostics Group, Inc.)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $250,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the report due on the fifteenth (15th) day of each month unless an earlier Request for Advance is submitted following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to the Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of the Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its reasonable discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintains their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) below.
(f) Borrower (i) shall provide prompt written notice from to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) upon Lender's request after an Event of Default shall have occurred and be continuing, shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account DebtorsDebtors as set forth on Schedule 2.16 hereto, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, chattel paper, warehouse receipts, instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts The Grantors shall maintain and Collateral in the possession of Custodian) will at pay for insurance upon all times be kept by Borrower at the locations set forth on Schedule 5.18B heretoCollateral, wherever located, covering casualty, hazard, public liability, theft, malicious mischief, and such other risks in such amounts (subject to current deductibles of $250,000) and with such insurance companies as are reasonably satisfactory to the Collateral Agent. All proceeds payable under each such policy shall notbe payable to, without thirty (30) calendar if the Fleet Facility Debt is outstanding, to the Fleet Facility Agent for application in accordance with the Fleet Facility Documents, and otherwise to the Collateral Agent for application to the Obligations. The Grantors shall deliver the originals or certified copies of such policies to the Collateral Agent with lender's loss payable endorsements reasonably satisfactory to the Collateral Agent, naming the Collateral Agent as a lender's loss payee, mortgagee, assignee or additional insured, as appropriate. Each policy of insurance or endorsement shall contain a clause requiring the insurer to give not less than 30 days prior written notice to Lender, be moved therefrom other than to another such location, the Collateral Agent in the event of cancellation of the policy for any reason whatsoever and in any case a clause specifying that the interest of the Collateral Agent shall not be moved outside impaired or invalidated by any act or neglect of any Grantor or the continental United Statesowner of the Property or by the occupation of the premises for purposes more hazardous than are permitted by said policy. Each of Borrower If any Grantor fails to provide and each Foreclosure Subsidiary hereby agrees pay for such insurance, the Collateral Agent may, at its option, but shall not be required to, procure the same and charge the Grantors therefor. The Grantors agree to deliver to the CustodianCollateral Agent, promptly as rendered, true copies of all reports made in any reporting forms to insurance companies relating to the Collateral. For so long as no Event of Default exists, the Custodian Deliverables promptly Grantors shall have the right to settle, adjust and compromise any claim with respect to any insurance maintained by the Grantors provided that all proceeds thereof relating to the Collateral are applied in the manner specified in this Security Agreement. At any time that an Event of Default exists and if the Fleet Facility Debt is paid in full, only the Collateral Agent shall be authorized to settle, adjust and compromise claims relating to the Collateral, the Collateral Agent shall have all rights and remedies with respect to such policies of insurance as are provided for in this Security Agreement and the other Operative Agreements; provided, that the Collateral Agent shall use reasonable efforts to consult with the Grantors regarding such settlement, adjustment or compromise but shall have no liability to the Grantors for the Collateral Agent 's failure to do so.
(b) Any proceeds of insurance referred to in this Section and any event condemnation awards that are paid to the Collateral Agent in connection with a condemnation of any of the Collateral shall be paid, if the Fleet Facility Debt is outstanding, to the Fleet Facility Agent, and otherwise to the Collateral Agent, provided that if such proceeds are received by the Collateral Agent and if so requested by the Grantors in writing within five (5) Business Days days after the Collateral Agent's receipt of such proceeds and if no Default or Event of Default exists, the Grantors may apply such proceeds to repair or replace damaged or destroyed Equipment or Real Estate so long as (1) such repair or replacement is promptly undertaken and concluded, (2) replacements of buildings are constructed on the sites of the original casualties and are of comparable size, and quality and utility to the destroyed buildings, (3) the repaired or replaced Property is at all times free and clear of Liens other than Permitted Liens that are not Purchase Money Liens, (4) the Grantors comply with such disbursement procedures for such proceeds as the Collateral Agent may reasonably impose for repair or replacement, and (5) the amount of proceeds from any Advance made single casualty affecting Equipment or Real Estate does not exceed $5,000,000.
(c) All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes imposed under any Applicable Law on any of the Collateral or in respect of the underlying Account. All Accounts shallsale thereof, regardless of their location, be deemed and all other payments required to be under Lendermade by the Collateral Agent or the Purchasers to any Person to realize upon any Collateral shall be borne and paid by the Grantors. Neither the Collateral Agent nor any Purchaser shall be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto (except for reasonable care in the custody thereof while any Collateral is in the Collateral Agent's dominion or such Purchaser's actual possession) or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at the Grantors' sole risk.
(d) Subject to other provisions hereof and control as may be commercially reasonable, the Grantors shall at all times defend its title to the Collateral and deemed shall in all events defend the Collateral Agent's Liens therein against all Persons and all claims and demands whatsoever other than holders of Permitted Liens.
(e) The Grantors shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to be the Collateral Agent on such periodic basis as the Collateral Agent shall request a sales and collections report for the preceding period, in Lenderform satisfactory to the Collateral Agent. The Grantors shall also provide to the Collateral Agent on or before the 20th day of each month a detailed aged trial balance of all Accounts existing as of the last day of the preceding month, specifying the names, face value and due dates for each Account Debtor obligated on an Account so listed ("Schedule of Accounts"), and, upon the Collateral Agent's possessionrequest therefor, customer addresses, dates of invoices, copies of proof of delivery and a copy of all documents, including repayment histories and present status reports relating to the Accounts so scheduled and such other matters and information relating to the status of then existing Accounts as the Collateral Agent shall reasonably request. Any Upon the Collateral Agent's request therefor, the Grantors shall deliver to the Collateral Agent copies of Lender's officersinvoices or invoice registers related to all of its Accounts.
(f) If any Grantor grants any discounts, employeesallowances or credits that are not shown on the face of the invoice for the Account involved, representatives the Grantors shall report such discounts, allowances or agents credits, as the case may be, to the Collateral Agent as part of the next required Schedule of Accounts. If any amounts due and owing in excess of $500,000 are in dispute between the Grantors and any Account Debtor, or if any returns are made in excess of $500,000 with respect to any Accounts owing from an Account Debtor, the Grantors shall provide the Collateral Agent with written notice thereof at the time of submission of the next Schedule of Accounts, explaining in detail the reason for the dispute or return, all claims related thereto and the amount in controversy. Upon and after the occurrence of an Event of Default and if the Fleet Facility Debt has been paid in full and the commitments thereunder terminated, the Collateral Agent shall have the right to settle or adjust all disputes and claims directly with the Account Debtor and to compromise the amount or extend the time for payment of any Accounts comprising a part of the Collateral upon reasonable noticesuch terms and conditions as the Collateral Agent may deem advisable, and to charge the deficiencies, costs and expenses thereof, including attorneys' fees, to the Grantors.
(g) If an Account of the Grantors includes a charge for any Taxes payable to any Governmental Entity, the Collateral Agent is authorized in its sole discretion, to pay the amount thereof to the proper taxing authority for the account of the Grantors and to charge the Grantors therefor; provided, however, that the Collateral Agent shall not be liable for any Taxes that may be due by the Grantors.
(h) Whether or not a Default or an Event of Default exists, the Collateral Agent shall have the right at any time during normal business hourstime, in the name of Lenderthe Collateral Agent, or any designee of Lender the Collateral Agent or Borrower or any Foreclosure Subsidiary, Grantors to verify the validity, amount or any other matter relating to any Accounts of the CollateralGrantors by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary The Grantors shall cooperate fully with Lender the Collateral Agent in an effort to facilitate and promptly conclude any such verification process. Each of Borrower and each Foreclosure Subsidiary .
(i) To expedite collection, the Grantors shall endeavor in the first instance after the Fleet Facility Debt has been paid in full and the commitments thereunder terminated to make collection of its respective the Grantors' Accounts for Lenderthe Collateral Agent. All monies received from such collection by the Grantors in respect of its Accounts, together with the proceeds of any other Collateral, shall be held by the Grantors as trustee of an express trust for the Collateral Agent's benefit and shall immediately deposit same in kind into a Deposit Account. If the Fleet Facility Debt has been paid in full and the commitments thereunder terminated, the Collateral Agent shall retain the right at all times after the occurrence of a Default or an Event of Default to notify Account Debtors of the Grantors that Accounts have been assigned to the Collateral Agent and to collect Accounts directly in its own name and to charge to the Grantors the collection costs and expenses, incurred by the Collateral Agent, including reasonable attorneys' fees.
(bj) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary The Grantors shall keep accurate and complete records of its Inventory and shall furnish the Collateral Agent inventory reports respecting such Inventory in form and all payments detail satisfactory to the Collateral Agent at such times as the Collateral Agent may request, but so long as no Default or Event of Default exists, no more frequently than once each week. The Grantors shall, at the Grantors' expense, conduct a physical inventory no less frequently than annually and collections thereon periodic cycle counts consistent with the Grantors' historical practices and shall submit provide to the Collateral Agent a report based on each such records to Lender on physical inventory and cycle count promptly thereafter, together with such periodic bases supporting information as Lender the Collateral Agent shall request. The Collateral Agent may request participate in its sole discretion. If requested by Lender upon and observe each physical count or inventory, which participation shall be at the Grantors' expense at any time after the occurrence and during the continuation of that an Event of DefaultDefault exists.
(k) The Grantors shall not return any of its Inventory to a supplier or vendor thereof, each or any other Person, whether for cash, credit against future purchases or then existing payables, or otherwise, unless (i) such return is in the Ordinary Course of Borrower Business of the Grantors and each Foreclosure Subsidiary such Person; (ii) no Default or Event of Default exists or would result therefrom; and (iii) if the Fleet Facility Debt has been paid in full and the commitments thereunder terminated, any payments received by the Grantors in connection with any such return are promptly turned over to the Collateral Agent for application to the Obligations.
(l) The Grantors shall execute keep accurate records itemizing and describing the kind, type, quality, quantity and cost of its Equipment and all dispositions made in accordance with Section 5(n) hereof, and shall furnish the Collateral Agent with a current schedule containing the foregoing information on at least an annual basis and more often if requested by the Collateral Agent. Promptly after request therefor by the Collateral Agent, the Grantors shall deliver to Lenderthe Collateral Agent any and all evidence of ownership, formal written assignments if any, of all of its Accounts as Lender may request, including all Accounts created since the date any of the last assignmentEquipment.
(m) The Grantors will not sell, together with copies lease or otherwise dispose of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount or transfer any of the outstanding Equipment or any part thereof without the prior written consent of the Collateral Agent; provided, however, that the foregoing restriction shall not apply, for so long as no Default or Event of Default exists, to (i) dispositions of Equipment which, in the aggregate during any consecutive 12 month period, has a fair market value or book value, whichever is more, of $250,000 or less, provided that all net Proceeds thereof, if the Fleet Facility Debt has been paid in full and the commitments thereunder terminated, are remitted to the Collateral Agent for application to the Obligations, or (ii) replacements of Equipment that are substantially worn, damaged or obsolete with Equipment of like kind, function and value, provided that the replacement Equipment shall be acquired prior to or concurrently with any disposition of the Equipment that is to be replaced, the replacement Equipment shall be free and clear of Liens other than Permitted Liens, and the Grantors shall have given the Collateral Agent at least 10 days prior written notice of such excess amount disposition.
(n) The Equipment is in good operating condition and repair, and all necessary replacements of and repairs thereto shall be made so that the value and operating efficiency of the Equipment shall be maintained and preserved, reasonable wear and tear excepted and unless the Grantors shall have determined in the exercise of their reasonable business judgment that nay piece of Equipment is no longer needed in their business. The Grantors will not accrue permit any of the Equipment to become affixed to any real Property leased to the Grantors so that an interest arises therein under the real estate laws of the applicable jurisdiction unless the landlord of such real Property has executed a Landlord Waiver in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating form acceptable to the Collateral shall be placed in Agent, and the Grantors will not permit any of the Equipment to become an off-site safety deposit box (and Lender shall have access accession to such safety deposit box); orany personal Property that is subject to a Lien unless the Lien is a Permitted Lien.
Appears in 1 contract
Samples: Security Agreement (Dixie Group Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, Exhibit C hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall reasonably request a sales and collections report for the preceding period, in form reasonably satisfactory to Lender. In addition, if Borrower's chief financial officer has actual knowledge that Accounts in an aggregate face amount in excess of $50,000.00 have become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each If requested by Lender upon an Event of Default, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (BMJ Medical Management Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $50,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under Lender's dominion and control and deemed to be in Lender's possession. Any Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or any Guarantors maintains its their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) in the event that Borrower and Lender enter into a Lockbox Account other than the one in existence as of the Closing Date, shall provide prompt written notice to each Account Debtor that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender's , upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender’s request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Teltronics Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Accounts) will at all times be kept by Borrower at the locations (including warehouses) set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the CustodianStates or Canada, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lenderas applicable.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of and upon Lender’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrower and any Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrower’s representations and warranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower maintains its executive offices, a place of business or assets or in which they are organized; and (ii) judgment and federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on its current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) As of the Closing Date, except as disclosed on Schedule 5.3, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 5.3) and Borrowers shall give notice to Lender promptly (but in any event not later than the delivery by Borrowers of the next Borrowing Certificate required pursuant to Section 2.4 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities Account or commodities account of Borrowers is maintained).
(h) Borrowers will conduct a physical count of the Inventory at the locations which contain Eligible Inventory at least once per year and at such other times as Lender requests, and Borrowers shall provide to Lender a written accounting of such physical count in form and substance satisfactory to Lender. Each Borrower will use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports in form and substance and from appraisers reasonably satisfactory to Lender stating the then current fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries.
(i) In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports, at the Borrower’s expense, in form and substance and from appraisers reasonably satisfactory to Lender stating the then current Orderly Liquidation Values, as required by the Lender, and fair market values of all or any portion of Inventory, Intellectual Property and furniture, fixtures and equipment owned by each Foreclosure Subsidiary hereby agrees Borrower or any Subsidiaries.
(j) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the ordinary course of business, made while no Default exists and in amounts which are not material with respect to take the following protective actions Account and which, after giving effect thereto, do not cause the Borrowing Base to prevent destruction be less than the Revolving Loans outstanding) without the prior written consent of records pertaining Lender. Without limiting the generality of this Agreement or any other provisions of any of the Loan Documents relating to such Person's Collateralthe rights of Lender after the occurrence and during the continuance of an Event of Default, Lender shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(k) Without limiting the generality of Sections 2.10(g) and (j):
(A) Borrowers shall deliver to Lender all tangible Chattel Paper and all Instruments and documents owned by any Borrower and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall provide Lender with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral by having Lender identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Lender all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will xxxx conspicuously all such Chattel Paper and all such Instruments and documents with a legend, in form and substance satisfactory to Lender, indicating that such Chattel Paper and such instruments and documents are subject to the security interests and Liens in favor of Lender created pursuant to this Agreement and the Security Documents.
(B) Borrowers shall deliver to Lender all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall take any and all actions as may be necessary or desirable, or that Lender may request, from time to time, to cause Lender to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Lender.
(C) Borrowers shall promptly advise Lender upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral, which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Lender such documents as Lender shall request to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to any such commercial tort claim.
(D) No Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Lender has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such possession or control. Borrower has notified Lender that Inventory is currently located at the locations set forth on Schedule 5.18. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person maintains to hold all such Collateral for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such Person that such Person holds the Collateral for Lender’s benefit.
(E) Borrowers shall cause all equipment and other tangible Personal Property other than Inventory to be maintained and preserved in the same condition, repair and in working order as when new, ordinary wear and tear excepted, and shall promptly make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable to such end. Upon request of Lender, Borrowers shall promptly deliver to Lender any and all certificates of title, applications for title or similar evidence of ownership of all such tangible Personal Property and shall cause Lender to be named as lienholder on any such certificate of title or other evidence of ownership. Borrowers shall not permit any such tangible Personal Property to become fixtures to real estate unless such real estate is subject to a Lien in favor of Lender.
(F) Each Borrower acknowledges that Lender is authorized to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Lender as the “secured party” and such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the Loan Documents (including an indication of the collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Lender from time to time determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Lender to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to the Collateral. Each Borrower also ratifies its authorization for Lender to have filed in any jurisdiction any initial UCC financing statements or amendments thereto if filed prior to the date hereof.
(G) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Lender in writing upon creation or acquisition by any Borrower of, any Collateral records which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. If any Collateral at any time constitutes a claim against a Governmental Authority, upon the request of Lender, Borrowers shall take such steps as may be necessary or desirable, or that Lender may request, to comply with any such applicable Law.
(H) Borrower shall provide Lender with a letter agreement acceptable in form and substance to Lender with regards to each manufacturer of Borrower that as of the Closing Date and from time to time thereafter accounts at any time for five percent (5%) or more of Borrower’s aggregate Inventory pursuant to which such manufacturer shall (i) consent to the assignment by Borrower to Lender of all of Borrower’s rights and remedies under such manufacturing agreement and (ii) upon the occurrence of an Event of Default hereunder, agree to work with Lender to complete the production of any Inventory that manufacturer is manufacturing on behalf of Borrower at such time.
(I) Borrower shall provide Lender with a manual system such records collateral assignment acceptable in form and substance to Lender of each Services Outsourcing Agreement entered into by Borrower as of the Closing Date from time to time thereafter, including without limitation the Xxxxxxx Agreement, which collateral assignment shall be kept in a fire proof cabinet by and between Borrower and Lender and acknowledged by each Servicer party to such Services Outsourcing Agreement.
(J) Borrowers shall furnish to Lender from time to time any statements and schedules further identifying or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to describing the Collateral shall be placed in an off-site safety deposit box (and any other information, reports or evidence concerning the Collateral as Lender shall have access may reasonably request from time to such safety deposit box); ortime.
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by each Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Each Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of PHC-Michigan or PHC-Utah (or any other Borrower whose Accounts may be included at any time in its sole discretionthe future within the Borrowing Base) in an aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, each such Borrower shall notify Lender of such occurrence on the first Business Day following the discovery of such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to the Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, upon prior written notice to Borrower, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or any Borrower, to verify the validity, amount or any other matter relating to any Accounts of any Borrower; provided that such prior written notice to Borrower is not required if a Default or Event of Default has occurred and be continuing. Each Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, each Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the 126 right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to any Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that such Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against each Borrower and Guarantor (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where any Borrower and/or Guarantor maintains their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above. UCC searches shall be conducted at the expense of Borrower on a quarterly basis; provided, that Lender shall have the right to conduct such searches more frequently at its expense and, if a Default or Event of Default shall have occurred, at the expense of Borrower.
(f) Each of PHC-Michigan and PHC-Utah (and any other Borrower whose Accounts may be included at any time in the future within the Borrowing Base)
(i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and each such Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
. At Lender's request, each such Borrower shall immediately deliver to Lender all items for which Lender must receive possession to obtain a perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar instruments constituting Collateral. Notwithstanding any provision of this subsection (f) Each to the contrary, following the occurrence of an Event of Default each Borrower and each Foreclosure Subsidiary hereby agrees to take shall comply with the following protective actions to prevent destruction provisions of records pertaining to such Person's Collateral: this subsection (if) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); ordirected by Lender.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (PHC Inc /Ma/)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianControlled Deposit Accounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, secure servers consistent with past practice and subject to customary cloud subscription agreements.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall not, without thirty submit such records to Lender on such periodic basis as Lender may reasonably request.
(30c) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiaryhours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lenderverification.
(bd) Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that (i) their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge reasonable collection costs and expenses, including reasonable attorneys’ fees, to Borrower, and (ii) Borrower has waived any and all defenses and counterclaims it may have or could interpose in any action or procedure brought by Xxxxxx to obtain a court order recognizing the assignment or security interest and lien of Lender in and to any Account or other Collateral.
(e) As and when determined by Lender in its sole discretionPermitted Discretion not to exceed once per calendar quarter absent an Event of Default or Lender receiving notice from its UCC monitoring system that a Lien has been filed against Borrower, Lender will shall have the right to perform the searches described in clauses (i) and (ii) below against each Borrower (the results of Borrower which are to be consistent with Borrower’s representations and each Foreclosure Subsidiarywarranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person Xxxxxxxx is organized and/or maintains its executive offices, a place of business or assetsorganized; and (ii) bankruptcy, judgment, federal federal, state and local tax lien and corporate and partnership tax lien litigation searches, in each jurisdiction searched under clause in which such actions, or Liens may be recorded.
(f) Borrower (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Concentration Account to the extent required by as set forth in Section 2.5, and (ii) hereby authorizes LenderXxxxxx, upon any failure to send such directionsnotices and directions within ten (10) days after the date of this Agreement (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion Xxxxxx to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) Each As of the Closing Date, no Person other than the Lender has “control” (as defined in Article 9 of the UCC) over any Controlled Deposit Accounts.
(h) After the occurrence and during the continuance of an Event of Default, Lender may elect to exercise any and all of the rights and remedies of Borrower under the Permits, without any interference from Xxxxxxxx, and each Foreclosure Subsidiary hereby agrees Borrower shall cooperate in causing the Governmental Authorities, contractors, or purchasers and lessees to take comply with all the following protective actions to prevent destruction terms and conditions of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orLicenses.
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon an event which, with the giving of notice or the lapse of time, or both, could constitute an Event of Default, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower Default to notify Account Debtors that Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge the collection costs and expenses, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directionsattorneys' fees, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (SFBC International Inc)
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianControlled Deposit Accounts) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, 5.17B hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than therefrom, except inventory being sold or transferred to another such locationBorrower in the ordinary course of business, and in any case shall not be moved located (as that term is used in Section 9-301(2) of the UCC) outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary Borrowers shall keep accurate and complete records of the Collateral their Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request. Upon Xxxxxx’s request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary but only to the extent permitted by Law, (i) Borrowers shall execute and deliver to Lender, Lender formal written assignments of all of its their Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or or other information related thereto, and (ii) if Xxxxxx seeks a court order for a complete assignment of the Borrowers’ Governmental Receivables, Borrowers shall enter into such additional assignments as Xxxxxx may request, which assignments will be made contemporaneously with any such court order. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrowers, but shall be available to Borrower Borrowers upon Borrowers’ written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrowers, to verify the validity, amount or any other matter relating to any Accounts. Borrowers shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify (i) Account Debtors owing Accounts to Borrowers other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrowers, and (ii) Medicaid/Medicare Account Debtors that Borrowers have waived any and all defenses and counterclaims they may have or could interpose in any action or procedure brought by Xxxxxx to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the assignment or security interest and lien of Lender in and to any Account or Collateral, and that Lender is seeking or may seek to obtain a court order recognizing the assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrowers and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrowers’ representations and warranties under this Agreement), at Borrowers’ reasonable expense: (i) UCC searches with the Secretary of State or local filing offices of the state where each Borrower is organized; and (ii) bankruptcy, judgment, federal, state and local tax lien and litigation searches, in each jurisdiction in which such actions, or Liens may be recorded.
(f) Borrowers (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on their current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Controlled Deposit Account to the extent required by as set forth in Section 2.5, and Borrowers hereby authorizes authorize Lender, upon any failure to send such directionsnotices and directions within ten (10) days after the date of this Agreement (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orand
Appears in 1 contract
Samples: Credit and Security Agreement
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of CustodianBackup Servicer or Agent) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B 5.17B hereto, and shall not, without thirty (30) calendar days prior written notice to LenderAgent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary Xxxxxxxx hereby agrees to deliver to the CustodianAgent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Custodian Verification Deliverables promptly but for each Lease that is to be added to the Collateral in any event within five (5) Business Days connection with such Revolving Advance. From and after the funding of any each Advance made hereunder, the originals of all Leases constituting Collateral in respect of the underlying Account. All Accounts such Advance shall, regardless of their location, be deemed to be under Lender's Agent’s dominion and control and deemed to be in Lender's Agent’s possession. Any of Lender's Agent’s officers, employees, representatives or agents agents, including, without limitation, Backup Servicer, shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, Agent or any designee of Lender Agent or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and each Foreclosure Subsidiary shall endeavor to collect such Leases directly in Agent’s own name, for the first instance benefit of itself and the Lenders, and to make charge collection of its respective Accounts for Lendercosts and expenses, including attorney’s fees, to Borrower.
(b) As and when determined by Lender Agent in its sole discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each of Borrower Borrower, Servicer and each Foreclosure SubsidiaryHoldings: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person Borrower, Servicer or Holdings is organized and/or maintains its executive offices, a place of business or assetsorganized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) abovewhere Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases basis as Lender Agent may request in its sole discretion. If requested Permitted Discretion.
(d) In respect of the portion of the Collateral consisting of any Lease which is evidenced by Lender upon or at any time after the occurrence and during the continuation of an Event of Defaultelectronic record that is not a transferable record under Applicable Law, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to LenderAgent or, formal written assignments at the request of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Xxxxxxxx’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of its Accounts as Lender may request, including all Accounts created since the date Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount portion of the outstanding ObligationsCollateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the terms contrary, held in Agent’s possession, custody, and control until all of Section 2.16the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lenderhereby agrees to, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtorcause Servicer to, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (iA) if such Person maintains its Collateral records no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a manual system such records website or through other remote electronic means for which Agent has been given access shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of available to Agent at all payments on Accounts times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other matters information relating to the Collateral shall Portfolio Documents as may from time to time be placed in an off-site safety deposit box (input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and Lender shall have access to such safety deposit box); orother computer software and computer systems.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $250,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the report due on the fifteenth (15th) day of each month unless an earlier Request for Advance is submitted following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to the Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of the Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its reasonable discretion, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintains their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) below.
(f) Borrower (i) shall provide prompt written notice from to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) upon Lender's request after an Event of Default shall have occurred and be continuing, shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account DebtorsDebtors as set forth on Schedule 2.16 hereto, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, chattel paper, warehouse receipts, instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Accounts) will at all times be kept by Borrower at the locations (including warehouses) set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionrequest. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of and upon Lender’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of written notice from Lenderwhich are to be consistent with Borrower’s representations and warranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower maintains its executive offices, a place of business or assets or in which they are organized; and (ii) judgment and federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on its current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) As of the Closing Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 5.3) and Borrowers shall give notice to Lender promptly (but in any event not later than the delivery by Borrowers of the next Borrowing Certificate required pursuant to Section 2.4 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities Account or commodities account of Borrowers is maintained).
(h) Borrowers will conduct a physical count of the Inventory at least twice per year and at such other times as Lender requests, and Borrowers shall provide to Lender a written accounting of such physical count in form and substance satisfactory to Lender. Each Borrower will use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports in form and substance and from appraisers reasonably satisfactory to Lender stating the then current fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries.
(i) In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports, at the Borrower’s expense, in form and substance and from appraisers reasonably satisfactory to Lender stating the then current Orderly Liquidation Values, as required by the Lender, and fair market values of all or any portion of Inventory, Intellectual Property and furniture, fixtures and equipment owned by each Foreclosure Subsidiary hereby agrees Borrower or any Subsidiaries.
(j) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the ordinary course of business, made while no Default exists and in amounts which are not material with respect to take the following protective actions Account and which, after giving effect thereto, do not cause the Borrowing Base to prevent destruction be less than the Revolving Loans outstanding) without the prior written consent of records pertaining Lender. Without limiting the generality of this Agreement or any other provisions of any of the Loan Documents relating to such Person's Collateralthe rights of Lender after the occurrence and during the continuance of an Event of Default, Lender shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(k) Without limiting the generality of Sections 2.10(g) and (j):
(A) Borrowers shall deliver to Lender all tangible Chattel Paper and all Instruments and documents owned by any Borrower and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall provide Lender with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral by having Lender identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Lender all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will xxxx conspicuously all such Chattel Paper and all such Instruments and documents with a legend, in form and substance satisfactory to Lender, indicating that such Chattel Paper and such instruments and documents are subject to the security interests and Liens in favor of Lender created pursuant to this Agreement and the Security Documents.
(B) Borrowers shall deliver to Lender all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall take any and all actions as may be necessary or desirable, or that Lender may request, from time to time, to cause Lender to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Lender.
(C) Borrowers shall promptly advise Lender upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral, which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Lender such documents as Lender shall request to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to any such commercial tort claim.
(D) Except for Accounts and Inventory in an aggregate amount of $25,000 and Inventory or other Collateral in transit, no Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Lender has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such possession or control. Borrower has notified Lender that Inventory is currently located at the locations set forth on Schedule 5.18. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person maintains its to hold all such Collateral records on a manual system for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such records Person that such Person holds the Collateral for Lender’s benefit.
(E) Borrowers shall cause all equipment and other tangible Personal Property other than Inventory to be kept maintained and preserved in a fire proof cabinet the same condition, repair and in working order as when new, ordinary wear and tear excepted, and shall promptly make or on no less than a monthly basiscause to be made all repairs, a record replacements and other improvements in connection therewith that are necessary or desirable to such end. Upon request of Lender, Borrowers shall promptly deliver to Lender any and all certificates of title, applications for title or similar evidence of ownership of all payments such tangible Personal Property and shall cause Lender to be named as lienholder on Accounts and all any such certificate of title or other matters evidence of ownership. Borrowers shall not permit any such tangible Personal Property to become fixtures to real estate unless such real estate is subject to a Lien in favor of Lender.
(F) Each Borrower acknowledges that Lender is authorized to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Lender as the “secured party” and such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the Loan Documents (including an indication of the collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Lender from time to time determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Lender to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to the Collateral. Each Borrower also ratifies its authorization for Lender to have filed in any jurisdiction any initial UCC financing statements or amendments thereto if filed prior to the date hereof.
(G) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Lender in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. If any Collateral at any time constitutes a claim against a Governmental Authority, upon the request of Lender, Borrowers shall take such steps as may be placed in an off-site safety deposit box necessary or desirable, or that Lender may request, to comply with any such applicable Law.
(H) Borrowers shall furnish to Lender from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Lender shall have access may reasonably request from time to such safety deposit box); ortime.
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts deposit accounts, and Collateral finished goods and inventory disposed of or held in the possession of CustodianBorrower's distributors and field service personnel or held on consignment in connection with clinical trials being conducted by or on Borrower's behalf or utilized in trade shows, all being in the normal course of Borrower's business) will shall at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, not be moved from such locations without thirty (30i) calendar days providing prior written notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior written consent of Lender, be moved therefrom other than to another such location, and in any case which consent shall not be moved outside unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the continental United Statespreceding period, in form satisfactory to Lender. Each In addition, if Qualified Accounts in an aggregate face amount in excess of $500,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event shall notify Lender of such occurrence within five three (53) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender on the occurrence of an Event of Default or any Advance made in respect event which with the giving of notice of lapse of time or both would constitute an Event of Default, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, on prior notice to Borrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower Default to notify Account Debtors that Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge the collection costs and expenses, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directionsattorneys' fees, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 hereto and ------------- shall not, without thirty (30) calendar days the prior written notice to approval of Lender, be moved therefrom other than therefrom.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to another Lender on such locationperiodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and in any case the Borrowing Base shall not thereupon be moved outside the continental United Statesadjusted to reflect such occurrence. Each of If requested by Lender, Borrower shall execute and each Foreclosure Subsidiary hereby agrees to deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender times upon or at any time after the occurrence of and during the continuation existence of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Healthcor Holdings Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower Borrowers at the locations their respective principal office(s) as set forth on Schedule 5.18B hereto4.15(a) or at the principal office of Ensign Facility Services, Inc. as set forth on Schedule 4.15(a) and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise (excepting those Accounts which become ineligible merely by reason of their age, for which no such notification is required). Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender after the occurrence and during the continuation of an Event of Default, Borrower shall execute and deliver to Lender weekly formal written assignments of all of its Accounts, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAgent) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) 30 calendar days prior written notice to LenderAgent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each Borrower shall keep accurate and complete records of Borrower its Collateral and each Foreclosure Subsidiary hereby agrees all payments and collections on Accounts and shall submit such records to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possessionAgent on such periodic bases as Agent may request. Any of the Agent's or any Lender's officers, employees, representatives or agents shall have the right right, upon reasonable notice, at any time notice to Borrower during normal business hours, in the name of Agent or any Lender, or any designee of Agent, any Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateral; provided, however, no such notice shall be required during the occurrence and continuation of any Default or Event of Default. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender Agent and Lenders in an effort to facilitate and promptly conclude such verification process. Each In addition to and notwithstanding any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuation of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and each Foreclosure Subsidiary to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower. Borrower shall endeavor in the first instance to make collection of its respective Accounts for LenderAgent, for the account of Lenders.
(b) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each Borrower (the results of Borrower which are to be consistent with Borrower's representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is Borrower and/or any Guarantors are organized and/or maintains its maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon LenderAgent's request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Papercertificates of title, chattel paper, warehouse receipts, Instrumentsinstruments, and any other similar Instruments instruments constituting Collateral, in each case if any; provided, however, so long as no Event of Default exists and is continuing, Borrower shall not be required to the extent not already in possession deliver certificates of Lender title to Agent or Custodian, or in the case perfect Agent's Lien thereon if such certificates of a participation interest, in possession title relate to Collateral having an aggregate value of the participating lenderless than $50,000.
(d) Each of Borrower shall, and each Foreclosure Subsidiary shall cause its Subsidiaries to, keep accurate and complete records of the Collateral its Accounts and Inventory and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases as Lender Agent may request reasonably request. In addition, (i) if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $50,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, or (ii) if Eligible Inventory Costs of Borrower in an aggregate face amount in excess of $50,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Inventory Costs, Borrower shall notify Agent of such occurrence no later than five (5) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after After the occurrence and during the continuation of an Event of Default, each of if requested by Agent, Borrower and each Foreclosure Subsidiary shall execute and deliver to LenderAgent, and shall cause each of its Subsidiaries to execute and deliver, formal written assignments of all of its Accounts as Lender Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available promptly remitted to Borrower upon written request in accordance with the terms of Section 2.16this Agreement.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender Agent, for itself and the benefit of the Lenders, has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Account, and Borrower hereby authorizes LenderAgent and/or Lenders, upon any failure to send such directionsnotices or directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Agent and/or any Lender in its Permitted Discretion to secure Lender's interestAgent, in for the Collateralbenefit of itself and Lenders, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Acorn Products Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its Permitted Discretion. Each In addition, if Accounts of Borrower in an aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under LenderBorrower upon Borrower's dominion and control and deemed to be in Lender's possession. Any written request.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hourshours and, upon reasonable advanced notice to Borrower if no Event of Default has occurred and is continuing, in the name of Lender, or any designee of Lender or Borrower, to review the books and records of Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantors (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized Borrower and/or any Guarantors maintains its their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(cf) Upon Borrower (i) shall provide prompt written notice to its current bank to transfer all collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten (10) Business Days after the date of this Agreement (or ten (10) Business Days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all the following items for which Lender must receive possession to obtain a perfected Lien and security interest and interest: all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Derma Sciences Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request, but not more often than monthly, a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following the date it became aware of such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts monthly (or more frequently upon and during the Custodiancontinuance of an Event of Default), which shall include all Accounts that have been created since the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower to notify Account Debtors that Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge reasonable collection costs and expenses, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directionsattorneys' fees, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan DocumentsBorrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Samples: Loan and Security Agreement (Rockwell Medical Technologies Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of Custodiandeposit accounts) will at all times be kept by Borrower at the locations its principal office(s) as set forth on Schedule 5.18B hereto, SCHEDULE 4.15 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside from such locations without the continental United Statesprior written consent of Lender, which consent shall not be unreasonably withheld or delayed.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the preceding period, in form satisfactory to Lender. Each In addition, if Accounts in an aggregate face amount in excess of $200,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily, which shall include all Accounts that have been created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, Lender or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver subject to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such applicable law regarding Medicaid/Medicare Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper to notify Account Debtors that Accounts have been assigned to Lender and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender collect Accounts directly in its Permitted Discretion own name and to secure Lender's interestcharge the collection costs and expenses, in the Collateralincluding attorneys' fees, and effectuate the intentions of the Loan Documentsto Borrower.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianControlled Deposit Accounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, secure servers consistent with past practice and subject to customary cloud subscription agreements.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall not, without thirty submit such records to Lender on such periodic basis as Lender may reasonably request.
(30c) calendar days prior written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's ’s officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiaryhours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lenderverification.
(bd) Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that (i) their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge reasonable collection costs and expenses, including reasonable attorneys’ fees, to Borrower, and (ii) Borrower has waived any and all defenses and counterclaims it may have or could interpose in any action or procedure brought by Lender to obtain a court order recognizing the assignment or security interest and lien of Lender in and to any Account or other Collateral.
(e) As and when determined by Lender in its sole discretionPermitted Discretion not to exceed once per calendar quarter absent an Event of Default or Lender receiving notice from its UCC monitoring system that a Lien has been filed against Borrower, Lender will shall have the right to perform the searches described in clauses (i) and (ii) below against each Borrower (the results of Borrower which are to be consistent with Borrower’s representations and each Foreclosure Subsidiarywarranties under this Agreement), at Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person Borrower is organized and/or maintains its executive offices, a place of business or assetsorganized; and (ii) bankruptcy, judgment, federal federal, state and local tax lien and corporate and partnership tax lien litigation searches, in each jurisdiction searched under clause in which such actions, or Liens may be recorded.
(f) Borrower (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Concentration Account to the extent required by as set forth in Section 2.5, and (ii) hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) days after the date of this Agreement (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(fg) Each As of the Closing Date, no Person other than the Lender and U.S. Bank (in connection with the Indenture) has “control” (as defined in Article 9 of the UCC) over any Controlled Deposit Accounts.
(h) After the occurrence and during the continuance of an Event of Default, Lender may elect to exercise any and all of the rights and remedies of Borrower under the Permits, without any interference from Borrower, and each Foreclosure Subsidiary hereby agrees Borrower shall cooperate in causing the Governmental Authorities, contractors, or purchasers and lessees to take comply with all the following protective actions to prevent destruction terms and conditions of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orLicenses.
Appears in 1 contract
Samples: Credit and Security Agreement (Vickers Vantage Corp. I)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) 30 calendar days prior written notice to LenderAgent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hoursStates or, in the name case of LenderRamsay Youth Services Puerto Rico, or any designee of Lender or Borrower or any Foreclosure SubsidiaryInc., to verify the validitya Puerto Rico corporation ("RY PUERTO RICO"), amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for LenderPuerto Rico.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender Agent on such periodic bases as Lender Agent may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Agent of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultAgent, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Agent formal written assignments of all of its Accounts weekly or daily as Lender Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower upon Borrower's written request.
(c) Whether or not an Event of Default has occurred, any of the Agent's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Agent, any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Agent, for the account of Lenders. Agent shall have the right at all times after the occurrence of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower, other than Medicaid/Medicare Account Debtors, that their Accounts have been assigned to Agent, for the benefit of itself and Lenders, and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Agent to obtain a court order recognizing the assignment or security interest and lien of Agent, for the benefit of itself and Lenders, in and to any Account or other Collateral and that Agent is seeking or may seek to obtain a court order recognizing the assignment or security interest and lien of Agent, for the benefit of itself and Lenders, in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors (A) are organized and (B) own or lease any real or personal property; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall, during an Event of Default, provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender Agent has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes LenderAgent and/or Lenders, upon any failure to send such directionsnotices and directions within 10 calendar days after the date of this Agreement (or 10 calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Agent and/or any Lender in its Permitted Discretion to secure Lender's interestAgent, in for the Collateralbenefit of itself and Lenders, and effectuate the intentions of the Loan Documents.
(f) Each of . At Agent's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Agent all items for which Agent must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, chattel paper, warehouse receipts, instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Texas San Macros Treatment Center Lp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral equipment located at the premises of clients and used in the possession their ordinary course of Custodianbusiness) will at all times be kept by Borrower Borrowers at the locations set forth on Schedule 5.18B hereto, and such other locations as Borrowers shall not, without thirty identify to Agent upon ten (3010) calendar days prior written notice to Lender, be moved therefrom other than to another such locationnotice, and in any case shall not be moved outside the continental United States.
(b) Each Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Agent on such periodic bases as Agent may request. Each In addition, if Accounts of any Borrower in an aggregate face amount in excess of $200,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrowers shall notify Agent of such occurrence on the first Business Day following such occurrence and each Foreclosure Subsidiary hereby agrees the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Agent, after the occurrence and during the continuance of an Event of Default, Borrowers shall execute and deliver to Agent formal written assignments of all of its Accounts weekly or daily as Agent may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrowers, but shall be deemed available to be under Lender's dominion and control and deemed to be in Lender's possession. Any Borrowers upon Borrowers' written request.
(c) Whether or not an Event of LenderDefault has occurred, any of Agent's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of LenderAgent, or any designee of Lender or Borrower Agent or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower; provided that unless an Event of Default has occurred and is continuing, such verification shall only verify account balances and shall not give notice of Agent's security interest. Each of Borrower and each Foreclosure Subsidiary Borrowers shall cooperate fully with Lender Agent in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, each Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for LenderAgent. Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrowers other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Agent and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrowers, and (ii) Medicaid/Medicare Account Debtors that Borrowers have waived any and all defenses and counterclaims they may have or could interpose in any such action or procedure brought by Agent to obtain a court order recognizing the collateral assignment or security interest and lien of Agent in and to any Account or other Collateral payable by Medicaid/Medicare Account Debtors and that Agent is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Agent in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(be) As and when determined by Lender Agent in its sole discretionPermitted Discretion, Lender Agent will perform the searches described in clauses (i) and (ii) below against each Borrowers and Guarantors (the results of Borrower which are to be consistent with Borrowers' representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrowers' expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is any Borrower and/or any Guarantors are organized and/or maintains its maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above, provided that unless an Event of Default shall have occurred and during the continuance thereof, the Borrowers shall not be required to pay for more than one such search in any fiscal quarter under clause (i) and clause (ii) above.
(cf) Upon LenderBorrowers (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than a Private Pay Debtor) directing them to make payments to the appropriate Lockbox Account, and Borrowers hereby authorizes Agent, upon any failure to send such notice and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor (other than a Private Pay Debtor)), to send any and all similar notices and directions to such Account Debtors and (iii) shall do such further acts and deeds that may be lawfully required by Agent to make, create, maintain, continue or perfect Agent's security interest in the Lockbox Accounts or the Collateral. At Agent's request, each of Borrower and each Foreclosure Subsidiary Borrowers shall promptly immediately deliver to Lender or Custodian Agent all items for which Lender Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, Collateral except for promissory notes in each case to a principal amount less than $100,000 provided that the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments aggregate principal amount of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but promissory notes shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or$500,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts Accounts, Collateral in possession of Lender, Equipment and Inventory in transit and Collateral in the possession of Custodianout for repair, refurbishment or finishing) will at all times be kept by Borrower the Borrowers at the locations set forth on Disclosure Schedule 5.18B hereto, 5.1(b) hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom (other than to another such locationlocation set forth on Disclosure Schedule 5.1(b)), and in any case shall not be moved outside the continental United States. Each State of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for LenderCalifornia.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Each Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep true, correct, complete and accurate and complete records of the Collateral its Accounts and all payments and collections thereon thereon, and shall submit such records to Lender on such periodic bases basis as Lender may request request. In addition, if Accounts of Borrowers in its sole discretionan aggregate face amount in excess of $50,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables (except for subsection (c) in the definition of Eligible Receivables), such Borrower shall notify Lender in writing of such occurrence on the first (1st) Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its their Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding ObligationsObligations (other than indemnity obligations under the Loan Documents that are not then due and payable or for which any events or claims that would give rise thereto are not then pending), such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrowers upon Borrowers' written request.
(c) Whether or not an Event of Default has occurred, any of Lender's officers, employees, representatives or agents shall have the right upon one (1) Business Day advance notice, at any time during normal business hours, in the name of Lender or any designee of Lender, to verify the validity, amount or any other matter relating to any Accounts of Borrowers; provided, however, no advance notice shall be required during the continuance of a Default or Event of Default. Each Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, each Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to any Borrower (other than Medicaid/Medicare Account Debtors) that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys' fees, to Borrowers, and (ii) Medicaid/Medicare Account Debtors that a Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or Lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or Lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against Borrowers and Guarantors, all at Borrower's expense: (i) uniform commercial code searches with the Secretary of State of the jurisdiction of organization of each Borrower and Credit Party and Guarantor and the Secretary of State and local filing offices of each jurisdiction where any Borrower or Credit Party and/or any Guarantors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, state and federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Each Borrower acknowledges that Lender has been granted a Lien upon and to all Accounts applicable to all Account Debtors and all Account Debtors shall make payments to the receipt of appropriate Lockbox Account, and to the extent any such Account Debtor is not making payments to the appropriate Lockbox Account or any Borrower's Lockbox Bank or other financial institution is not transferring all items, collections and remittances to the Concentration Account, each Borrower (i) covenants that it shall provide prompt written notice from Lenderto its current bank and/or Lockbox Bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and each Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, Lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, each Borrower and each Foreclosure Subsidiary hereby agrees shall promptly deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected Lien and all notes, certificates and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit Agreement (Integrated Healthcare Holdings Inc)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than unless Lender has entered into the necessary documents to another perfect and enforce its security interest therein at such new location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $30,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after Following the occurrence and during the continuation continuance of an Event of Default, each of if requested by Lender, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments (or, in the case of Medicaid/Medicare Account Debtors, documents necessary to comply with the Federal Assignment of Claims Act) of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower's written request.
(c) Following an occurrence or during the continuance of an Event of Default, any of Lender's officers, employees, representatives or agents shall have the right, at any time during normal business hours, in accordance the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts or Inventory of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(e) Each As and when determined by Lender in its sole discretion but not more often than four (4) times per year prior to the occurrence and continuance of Borrower and each Foreclosure Subsidiary an Event of Default, Lender will perform the searches described in clauses (i) upon and (ii) below against Borrower and Guarantors (the receipt results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where Borrower and/or any Guarantors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender's request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver or make arrangements to take the following protective actions deliver to prevent destruction of records pertaining Lender all items for which Lender must receive possession to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Millstream Acquisition Corp)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times be kept by each Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States.
(b) Each Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. Each In addition, if Accounts of PHC-Michigan or PHC-Utah (or any other Borrower whose Accounts may be included at any time in the future within the Borrowing Base) in an aggregate face amount in excess of $10,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, each such Borrower shall notify Lender of such occurrence on the first Business Day following the discovery of such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, each Foreclosure Subsidiary hereby agrees to Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect date of the underlying Accountlast assignment, together with copies of claims, invoices and/or other information related thereto. All Accounts shallTo the -- 38 -- extent that collections from such assigned accounts exceed the amount of the Obligations, regardless such excess amount shall not accrue interest in favor of their locationBorrower, but shall be deemed available to be under Lenderthe Borrower upon Borrower's dominion and control and deemed written request.
(c) Whether or not an Event of Default has occurred, upon prior written notice to be in Lender's possession. Any Borrower, any of Lender's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of any Borrower; provided that such prior written notice to Borrower is not required if a Default or Event of Default has occurred and be continuing. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, each Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to any Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney's fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that such Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to all Accounts and other Collateral payable by Medicaid/Medicare Account Debtors.
(be) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure SubsidiaryGuarantor (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), all at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized any Borrower and/or Guarantor maintains its their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above. UCC searches shall be conducted at the expense of Borrower on a quarterly basis; provided, that Lender shall have the right to conduct such searches more frequently at its expense and, if a Default or Event of Default shall have occurred, at the expense of Borrower.
(cf) Upon Each of PHC-Michigan and PHC-Utah (and any other Borrower whose Accounts may be included at any time in the future within the Borrowing Base)
(i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and each such Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the Loan Documents. At Lender's request, each of such Borrower and each Foreclosure Subsidiary shall promptly immediately deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case . Notwithstanding any provision of this subsection (f) to the extent not already in possession of Lender or Custodian-- 39 -- contrary, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after following the occurrence and during the continuation of an Event of Default, Default each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance comply with the terms provisions of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
this subsection (f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); ordirected by Lender.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (PHC Inc /Ma/)
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral deposit accounts) described in the possession of CustodianSection 3.1
(a) will at all times be kept by Borrower at the locations its principal offices as set forth on Schedule 5.18B hereto, 4.14 hereto and shall will not, without thirty (30) calendar 30 days prior written ------------- notice to Lender, be moved therefrom other than to another such locationtherefrom.
(b) Borrower will keep accurate and complete records of its Accounts, including, without limitation, the Receivables, and all payments and collections thereon, and Borrower will submit to Lender on such periodic basis as Lender may reasonably request a collections report for the preceding period, in any case shall not be moved outside form satisfactory to Lender. If requested by Lender during the continental United States. Each existence of an Event of Default, Borrower will execute and each Foreclosure Subsidiary hereby agrees to deliver to the CustodianLender formal written assignments of all of its Accounts weekly or daily, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect which will include all Accounts that have been created since the-date of the underlying Account. All Accounts shalllast assignment, regardless together with copies of their locationclaims, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any invoices or other information related thereto.
(c) After an Event of Default has occurred, any of Lender's officers, employees, representatives employees or agents shall will have the right upon reasonable noticeright, at any time during normal business hoursor times hereafter, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount amount, or any other matter relating to the Collateralany Accounts by mail, telephone, telegraph or otherwise. Each of Borrower and each Foreclosure Subsidiary shall will cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of .
(d) To expedite collection, Borrower and each Foreclosure Subsidiary shall will endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by . Lender in its sole discretion, Lender will perform retains the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian right at all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time times after the occurrence and during the continuation continuance of an Event of Default, each of Borrower Default to notify any Person liable with respect to the Accounts that the Accounts have been assigned to Lender and each Foreclosure Subsidiary shall execute to collect Accounts directly in its own name and deliver to Lender, formal written assignments of all of its Accounts as Lender may requestcharge the collection costs and expenses, including all Accounts created since the date of the last assignmentreasonable attorneys' fees and expenses, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16Borrower.
(e) Each Without the prior written consent of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, Borrower shall provide prompt written notice not enter into any settlement with or compromise any amount due from any Person liable on any Account, or issue any credit or agree to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp set off or other method satisfactory reduction with respect to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OFany Account, AND PLEDGED AS COLLATERAL TOor otherwise amend or modify any Contractual Obligation giving rise to any Account, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept other than in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); ormanner consistent with past practice.
Appears in 1 contract
Collateral Administration. (a) All Collateral (except Deposit Accounts and Collateral funds required to be deposited in the possession of CustodianLockbox Account) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto, 5.17B hereto and shall not, without thirty (30) calendar days prior concurrent written notice to Lender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases basis as Lender may request in its sole discretionreasonably request. If requested by Lender upon or at any time after After the occurrence and during the continuation continuance of an Event of Default, each of and upon Lender’s request, Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request, and any such return of excess funds shall not be deemed to be an Advance.
(c) Any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in accordance with an effort to facilitate and promptly conclude such verification.
(d) Lender shall have the terms right at all times after the occurrence and during the continuance of Section 2.16an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to Borrower.
(e) Each of Borrower As and each Foreclosure Subsidiary when determined by Lender in its Permitted Discretion, Lender shall have the right to perform the searches described in clauses (i) upon and (ii) below against Borrower (the receipt results of written notice from Lenderwhich are to be consistent with Borrower’s representations and warranties under this Agreement), on a quarterly basis at Borrower’s reasonable expense, unless an Event of Default has occurred and is continuing in which case such searches shall be conducted as often as Lender deems appropriate, at Borrower’s expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower maintains its executive offices, a place of business or assets or in which they are organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on its current bank to transfer all items, collections and security interest in, upon and remittances to all Accounts payable by such Account Debtorthe Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Lockbox Account to the extent required by as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required and reasonably requested by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, Lender and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender’s request, Borrower and each Foreclosure Subsidiary hereby agrees shall promptly deliver to take the following protective actions Lender all items for which Lender must receive possession or control to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Credit and Security Agreement (Selway Capital Acquisition Corp.)
Collateral Administration. (a) All Borrower shall cause all Collateral (except Deposit Accounts and Collateral in the possession of CustodianAccounts) will at all times to be kept by Borrower at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationremove or permit the removal therefrom, and in any case shall not be moved move any Collateral outside the continental United States. Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Custodian, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(b) As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against each of Borrower and each Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request request. In addition, if Accounts of Borrower in its sole discretionan aggregate face amount in excess of $75,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of DefaultLender, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, Lender formal written assignments of all of its Accounts weekly or daily as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable notice, (except upon the occurrence and during the continuance of an Event of Default, in accordance which event no such notice shall be required) in the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the terms first instance to make collection of Section 2.16its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Debtors owing Accounts to Borrower that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower.
(e) Each As and when determined by Lender in its sole discretion, Lender will perform the searches described in clauses (i) and (ii) below against Borrower and Guarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and Guarantor and the Secretary of State and local filing offices of each Foreclosure Subsidiary jurisdiction where Borrower and/or Guarantor maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) upon the receipt of above.
(f) Borrower (i) shall provide prompt written notice from Lenderto its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on lien and security interest in, upon and to all Accounts payable by applicable to such Account Debtor, (ii) Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such directionsnotices and directions within ten (10) calendar days after the date of this Agreement (or ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions or notice to such Account Debtors, and (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure create and perfect Lender's interest, in the Collateral, ’s lien on any collateral and effectuate the intentions of the Loan Documents.
(f) Each of . At Lender’s request, Borrower and each Foreclosure Subsidiary hereby agrees shall immediately deliver to take the following protective actions Lender all items for which Lender must receive possession to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on obtain a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); orsimilar instruments constituting Collateral.
Appears in 1 contract
Samples: Credit and Security Agreement (Ventures National Inc)
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Custodian) granted by Borrower to Lender will at all times be kept by Borrower Xxxxxxxx at the locations set forth on Schedule 5.18B hereto00000 Xxxxxxxx Xx., Xxxxxxxxxxx, XX 00000 and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. Each State of California.
(b) Borrower shall keep accurate and each Foreclosure Subsidiary hereby agrees complete records of its Accounts and all payments and collections thereon and shall submit such records to deliver to the CustodianLender on such periodic bases as Lender may request.
(c) Whether or not an Event of Default has occurred, the Custodian Deliverables promptly but in any event within five (5) Business Days of any Advance made in respect of the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Lender's dominion and control and deemed to be in Lender's possession. Any of Lender's officers, employees, representatives or agents shall have the right upon reasonable noticeright, at any time during normal business hours, and upon reasonable notice, in the name of Lender, or any designee of Lender or Borrower or any Foreclosure SubsidiaryBorrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Lender in an effort to facilitate and and. promptly conclude conclude- such verification process. Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to make collection of its respective Accounts for Lender.
(bd) As and when determined by Lender in its sole reasonable discretion, Lender Xxxxxx will perform the searches described in clauses (i) and (ii) below against each Borrower (the results of Borrower which are to be consistent with Borrower's representations and each Foreclosure Subsidiarywarranties under this Agreement), all at Borrowers' expense: (i) UCC searches with the Secretary of State of the Jurisdiction of organization of Borrower and each Guarantor, the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where such Person is organized and/or maintains its Borrowers maintain their respective executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership state tax lien searches, in each jurisdiction searched under clause (i) above.
(ce) Upon LenderBorrower, upon Xxxxxx's request, each shall: (1) take all actions that may be lawfully required by Lender to create and perfect Lender's Lien on any Collateral and effectuate the intentions of Borrower the DIP Loan Documents; and each Foreclosure Subsidiary shall promptly (ii) immediately deliver to Lender or Custodian all items for which Lender Xxxxxx must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request in its sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the outstanding Obligations, such excess amount shall not accrue interest in favor of Borrower (except as provided in the Blocked Account Agreements) but shall be available to Borrower in accordance with the terms of Section 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall xxxx each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to take the following protective actions to prevent destruction of records pertaining to such Person's Collateral: (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of all payments on Accounts and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Lender shall have access to such safety deposit box); or
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Samples: Postpetition Revolving Credit and Security Agreement
