Continued Priority of Security Interest. (a) The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP Order. (b) Borrower shall, at its sole cost and expense, take all action that may be necessary or desirable, or that Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a), or to enable Lender to exercise or enforce its rights hereunder. (c) Borrower covenants and agrees with Lender that from and after the Agreement Date and until the Termination Date, at any time upon the request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request in its discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “all personal property of Debtor” or “all assets of Debtor” or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c) without Lender’s prior written consent. (d) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim. (e) Borrower shall xxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security Interest. (f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 2 contracts
Samples: Debtor in Possession Loan and Security Agreement (PRB Energy, Inc.), Debtor in Possession Loan and Security Agreement (PRB Energy, Inc.)
Continued Priority of Security Interest. (a) a. The Security Interest granted by the Borrower shall at all times be valid, perfected and enforceable against the Borrower and all third parties in accordance with the terms of this Agreement, as security for the Secured Obligations, and the Collateral shall not be at any time be subject to any Liens that are prior to, or on a parity with or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP OrderLiens.
(b) b. The Borrower shall, at its sole cost and expense, take all action that may be necessary or desirable, or that the Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a), 7.2(a) or to enable the Lender to exercise or enforce its rights hereunder.
, including, but not limited to: (ci) Borrower covenants delivering to the Lender the portfolio of Installment Contracts pledged as Collateral in order for Lender to hold and agrees with Lender that from and after act as the Agreement Date and until custodian of the Termination Datesame, at any time upon (iii) delivering to the request of Lender, Borrower shall execute (endorsed or cause to be executed) accompanied by such instruments of assignment as the Lender may specify, and deliver to Lenderstamping or marking in such manner as the Lender may specify, any and all chattel paper, instruments, letters and advices of guaranty and documents evidencing or forming a part of the Collateral, and (iv) executing and delivering financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, designations, hypothecations, notices and assignments, endorsements of certificates of title, and all other documents (the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request in its discretion, each case in form and substance satisfactory to the Lender, relating to perfect the creation, validity, perfection, maintenance or continuation of the Security Interest under the UCC or other applicable law.
c. The Lender is hereby authorized to hold the portfolio of Eligible Installment Contracts pledged as Collateral and continue act as the perfection custodian of the same, pursuant to a Custodial Agreement of even date herewith.
d. The Lender is hereby authorized to file one or better perfect Lender’s Liens more financing or continuation statements or amendments thereto in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all name of the transactions contemplated hereby Borrower and under without the signature of Borrower for any purpose described in Section 7.2(b). A carbon, photographic or other Loan Documents. To reproduction of this Agreement or of any of the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Security Documents in Borrower’s name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. Borrower authorizes Lender to transmit, communicate or, as applicable, file or of any financing statement under the UCC, record, in-lieu filed in connection with this Agreement is sufficient as a financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “all personal property of Debtor” or “all assets of Debtor” or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement if such financing statement has been pre-filed permitted by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, applicable law.
e. The Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c) without Lender’s prior written consent.
(d) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(e) Borrower shall xxxx mxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security Interest.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Revolving Credit Loan and Security Agreement (Freedom Financial Group Inc)
Continued Priority of Security Interest. (a) The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided Liens. Borrower represents and warrants to Lender that none of the lenders holding a Permitted Lien has a security interest in the DIP OrderCollateral superior in priority to the Lien of Lender granted under this Agreement, except for that portion of the Collateral that secures the Touch-1 Indebtedness and except for purchase money Liens that are Permitted Liens.
(b) Borrower shall, at its it sole cost and expense, take all action that may be necessary or desirable, or that Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a3.2 (a), or to enable Lender to exercise or enforce its rights hereunder.
(c) Borrower covenants and agrees with Lender that from and after the Agreement Date and until the Termination Date:
i. In the event that any Collateral, at including proceeds, is evidenced by or consists of negotiable collateral (including without limitation letters of credit, Letter-of-credit rights, instruments, promissory notes, draft documents or chattel paper (including electronic and tangible chattel paper)), and if and to the extent that perfection or priority of Lender's security interest is dependent on or enhanced by possession, Borrower, immediately upon the request of Lender, shall endorse and deliver physical possession of such negotiable collateral or chattel paper to Lender.
ii. Borrower shall take all steps reasonably necessary to grant Lender control of all electronic chattel paper in accordance with the UCC and all "transferable records" as defined in each of the Uniform Electronic Transaction Act and the Electronic Signatures in Global and National Commerce Act; and
iii. If Borrower retains possession of any chattel paper or instruments with Lender's consent, such chattel paper and instruments shall be marked with the following legend: "This writing and the obligations evidenced or secured thereby are subject to the security interest of Textron Financial Corporation."
(d) At any time upon the request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (the “"Additional Documents”") upon which Borrower’s 's signature may be required that Lender may request in its discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s 's Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s 's name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. In addition, on such periodic basis as Lender shall require, Borrower shall (a) provide Lender with a report of all new patentable, copyrightable, or trademarkable materials acquired or generated by Borrower during the prior period, (b) cause all patents, copyrights, and trademarks acquired or generated by Borrower that are not already the subject of a registration with the appropriate filing office (or an application therefor diligently prosecuted) to be registered with such appropriate filing office in a manner sufficient to impart constructive notice of Borrower's ownership thereof, and (c) cause to be prepared, executed, and delivered to Lender supplemental schedules to the applicable Loan Documents to identify such patents, copyrights, and trademarks as being subject to the security interests created thereunder. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument instrument, including those describing the Collateral as defined herein, as “"all personal property of Debtor” " or “"all assets of Debtor” " or words of similar effect effect, in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s 's authorization to file a financing statement statement, if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c3.2(d) without Lender’s 's prior written consent.
(de) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(ef) Borrower shall xxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security Interest.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Loan and Security Agreement (Z Tel Technologies Inc)
Continued Priority of Security Interest. (a) The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided Liens. Borrower represents and warrants to Lender that none of the lenders holding a Permitted Lien has a security interest in the DIP OrderCollateral superior in priority to the Lien of Lender granted under this Agreement, other than the first priority security interest of SouthTrust in the SouthTrust Collateral.
(b) Borrower shall, at its sole cost and expense, take all action that may be necessary or desirable, or that Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a), or to enable Lender to exercise or enforce its rights hereunder.
(c) Borrower covenants and agrees with Lender that from and after the Agreement Date and until the Termination Date:
(i) In the event that any Collateral, at including proceeds, is evidenced by or consists of negotiable collateral (including without limitation letters of credit, Letter-of-credit rights, instruments, promissory notes, draft documents or chattel paper (including electronic and tangible chattel paper)), and if and to the extent that perfection or priority of Lender's security interest is dependent on or enhanced by possession, Borrower, immediately upon the request of Lender, shall endorse and deliver physical possession of such negotiable collateral or chattel paper to Lender.
(ii) Borrower shall take all steps reasonably necessary to grant Lender control of all electronic chattel paper in accordance with the UCC and all "transferable records" as defined in each of the Uniform Electronic Transaction Act and the Electronic Signatures in Global and National Commerce Act; and
(iii) If Borrower retains possession of any chattel paper or instruments with Lender's consent, such chattel paper and instruments shall be marked with the following legend: "This writing and the obligations evidenced or secured thereby are subject to the security interest of Textron Financial Corporation."
(d) At any time upon the reasonable request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (the “"Additional Documents”") upon which Borrower’s 's signature may be required that Lender may request in its discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s 's Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s 's name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. In addition, on such periodic basis as Lender shall require, Borrower shall (a) provide Lender with a report of all new patentable, copyrightable (other than materials commonly prepared in the ordinary course of business), or trademarkable materials acquired or generated by Borrower during the prior period, (b) cause to be prepared, executed, and delivered to Lender supplemental schedules to the applicable Loan Documents to identify such patents, copyrights, and trademarks that have been or will be registered by the Borrower with the appropriate filing office as being subject to the security interests created thereunder, and (c) execute and deliver to Lender such documents as Lender may require to perfect its security interest in such registered patents, copyrights, and trademarks. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “"all personal property of Debtor” " or “"all assets of Debtor” " or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s 's authorization to file a financing statement statement, if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c3.2(d) without Lender’s 's prior written consent.
(de) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed that are necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(ef) Borrower shall xxxx mark its books and records as directed xx xirected by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security Interest.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Loan and Security Agreement (Galaxy Nutritional Foods Co)
Continued Priority of Security Interest. (a) The Security Interest granted by Borrower in Section 6.1 hereof shall at all times be valid, perfected and enforceable against Borrower the Borrower, and each of the Guarantors, and all third parties in accordance with the terms of this Agreement, as security for the Secured Obligations, and the Collateral shall not be at any time be subject to any Liens that are prior to, or on a parity with with, or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP OrderLiens.
(b) The Borrower shall, at its sole cost and expense, take all action that may be necessary or desirable, or that the Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a6.2(a), or to enable the Lender to exercise or enforce its rights hereunder., including but not limited to:
(c1) Borrower covenants paying all taxes, assessments and agrees with Lender other claims lawfully levied or assessed on any of the Collateral, except to the extent that from such taxes, assessments and other claims constitute Permitted Liens;
(2) obtaining, after the Agreement Date date of this Agreement, landlords', mortgagees' or mechanics' releases, subordinations or waivers; provided, that the failure to obtain any of the foregoing shall not be deemed a breach of this covenant so long as the Lender is satisfied that the Borrower utilized its best efforts in connection therewith;
(3) executing and until the Termination Date, at any time upon the request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all delivering financing statements, original financing statements in lieu pledges, designations, mortgages, deeds to secure debt, deeds of continuation statements, fixture filingstrust, security agreements, pledgeshypothecations, assignments, endorsements of certificates of title, notices and all other documents (the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request assignments in its discretion, each case in form and substance satisfactory to Lenderthe Lender relating to the creation, validity, perfection, maintenance or continuation of the Security Interest under the Uniform Commercial Code or other Applicable Law.
(c) The Lender is hereby authorized to perfect and continue file one or more financing or continuation statements or amendments thereto without the perfection signature of or better perfect Lender’s Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all name of the transactions contemplated hereby Borrower and under each of the other Loan DocumentsGuarantors for such purpose. To The Lender will give the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute notice of the filing of any such Additional Documents in Borrower’s name and authorizes Lender to file statements or amendments, which notice shall specify the locations where such executed Additional Documents in any appropriate filing officestatements or amendments were filed. Borrower authorizes Lender to transmitA carbon, communicate orphotographic, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement xerographic or other instrument describing the Collateral as defined herein, as “all personal property reproduction of Debtor” or “all assets of Debtor” or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge or of any of the Obligations, Borrower shall not terminate, amend Security Documents or file a correction statement with respect to of any financing statement filed pursuant to in connection with this Section 3.2(c) without Lender’s prior written consentAgreement is sufficient as a financing statement.
(d) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(e) Borrower shall xxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security Interest.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Loan Agreement (Corrections Corporation of America)
Continued Priority of Security Interest. (a) The Security Interest security interest granted by Borrower shall at all times be valid, perfected valid and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time be subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP Order.
(b) Encumbrances. Borrower shall, at its sole cost and expense, take all action that may be necessary or desirabledesirable (other than the filing of continuation statement under the UCC), or that Lender the Collateral Agent may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest security interest in the Collateral in conformity with the requirements of Section 3.2(a), or to enable Lender the Collateral Agent to exercise or enforce its rights hereunder, and to obtain the full benefits of this Agreement.
(cb) The Collateral Agent is hereby authorized to file one or more financing or continuation statements or amendments thereto in the name of Borrower covenants in any jurisdictions and agrees with Lender that from and after any filing offices as the Agreement Date and until Collateral Agent may determine, in its sole discretion, are necessary or advisable to perfect the Termination Datesecurity interest granted to the Collateral Agent hereunder, at any time upon the request of Lenderincluding, Borrower shall execute (or cause to be executed) and deliver to Lenderwithout limitation, any and all such financing statements, original or continuation statements as Collateral Agent deems necessary in its sole discretion in order to comply with the UCC. Such financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (may describe the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request in its discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s Liens Collateral in the same manner as described in this Agreement or may contain an indication or description of Collateral (that describes such property in any other manner, including, without limitation, describing such property as “all assets, whether now owned or hereafter arising acquired or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “all personal property of Debtorarising” or “all assets of Debtor” personal property, whether now owned or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary hereafter acquired or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c) without Lender’s prior written consentarising.”
(d) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(ec) Borrower shall xxxx its books and records as directed by Lender the Collateral Agent and as may be reasonably necessary or appropriate to evidence, protect and perfect the Security Interest security interest granted hereunder and shall cause its financial statements to reflect the Security Interestsecurity interest.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Continued Priority of Security Interest. (a) The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP OrderLiens.
(b) Borrower shall, at its it sole cost and expense, take all action that may be necessary or desirable, or that either Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a)Article III, or to enable Lender to exercise or enforce its rights hereunder.
(c) Borrower covenants and agrees with Lender that from and after the Agreement Closing Date and until the Termination Datenon-contingent Obligations have been paid in full, at subject to Sections 3.3 and 3.4:
(i) In the event that any Collateral, including proceeds, is evidenced by or consists of negotiable collateral (including without limitation letters of credit, letter-of-credit rights, instruments, promissory notes, draft documents or chattel paper, including electronic and tangible chattel paper), and if and to the extent that perfection or priority of Lender’s security interest is dependent on or enhanced by possession, Borrower, immediately upon the request of Lender, shall endorse and deliver physical possession of such negotiable collateral or chattel paper to Lender;
(ii) Borrower shall take all steps necessary or otherwise reasonably requested by Lender to grant Lender control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transaction Act and the Electronic Signatures in Global and National Commerce Act; and
(iii) if Borrower retains possession of any chattel paper or instruments with Lender’s consent, such chattel paper and instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured thereby are subject to the security interest of Xxxxxx X. Xxxxxxxxxx.”
(d) At any time upon the request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request in its sole discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “all personal property of Debtor” or “all assets of Debtor” or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement statement, if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c3.2(d) without Lender’s prior written consent.
(de) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize and hereby authorizes the filing of additional or amendments to existing financing statements and shall do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(ef) Borrower shall xxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security InterestInterest by appropriate footnote.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Loan and Security Agreement (United Development Funding III, LP)
Continued Priority of Security Interest. (a) The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower and all third parties in accordance with the terms of this Agreement, as security for the Obligations, and the Collateral shall not be at any time subject to any Liens that are prior to, or on parity with or junior to the Security Interest, other than Permitted Liens or as may be provided in the DIP OrderLiens.
(b) Borrower shall, at its it sole cost and expense, take all action that may be necessary or desirable, or that either Lender may reasonably request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the Collateral in conformity with the requirements of Section 3.2(a)Article III, or to enable Lender to exercise or enforce its rights hereunder.
(c) Borrower covenants and agrees with Lender that from and after the Agreement Date and until the Termination Date, at subject to Sections 3.3 and 3.4:
(i) In the event that any Collateral, including proceeds, is evidenced by or consists of negotiable collateral (including without limitation letters of credit, letter-of-credit rights, instruments, promissory notes, draft documents or chattel paper, including electronic and tangible chattel paper, and if and to the extent that perfection or priority of Lender’s security interest is dependent on or enhanced by possession, Borrower, immediately upon the request of Lender, shall endorse and deliver physical possession of such negotiable collateral or chattel paper to Lender;
(ii) Borrower shall take all steps reasonably necessary to grant Lender control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transaction Act and the Electronic Signatures in Global and National Commerce Act; and
(iii) if Borrower retains possession of any chattel paper or instruments with Lender’s consent, such chattel paper and instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured thereby are subject to the security interest of Premier Bank.”
(d) At any time upon the request of Lender, Borrower shall execute (or cause to be executed) and deliver to Lender, any and all financing statements, original financing statements in lieu of continuation statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, and all other documents (the “Additional Documents”) upon which Borrower’s signature may be required that Lender may request in its sole discretion, in form and substance satisfactory to Lender, to perfect and continue the perfection of or better perfect Lender’s Liens in the Collateral (whether now owned or hereafter arising or acquired), and in order to consummate fully all of the transactions contemplated hereby and under the other Loan Documents. To the maximum extent permitted by Applicable Law, Borrower authorizes Lender to execute any such Additional Documents in Borrower’s name and authorizes Lender to file such executed Additional Documents in any appropriate filing office. Borrower authorizes Lender to transmit, communicate or, as applicable, file any financing statement under the UCC, record, in-lieu financing statement, amendment, correction statement, continuation statement, termination statement or other instrument describing the Collateral as defined herein, as “all personal property of Debtor” or “all assets of Debtor” or words of similar effect in such jurisdictions and in such filing offices as Lender may deem necessary or desirable in order to perfect any security interest granted by Borrower under this Agreement and the other Loan Documents without signature. Borrower hereby ratifies, to the extent necessary, Lender’s authorization to file a financing statement statement, if such financing statement has been pre-filed by Lender prior to the Agreement Date. Prior to repayment in full and final discharge of the Obligations, Borrower shall not terminate, amend or file a correction statement with respect to any financing statement filed pursuant to this Section 3.2(c3.2(d) without Lender’s prior written consent.
(de) Borrower shall promptly notify Lender in writing upon incurring or otherwise obtaining a commercial tort claim, as that term is defined in the UCC, after the date hereof against any third party and, upon request of Lender, promptly amend Schedule 1 to this Agreement, authorize the filing of additional or amendments to existing financing statements and do such other acts or things deemed necessary or desirable by Lender to give Lender a security interest in any such commercial tort claim.
(ef) Borrower shall xxxx its books and records as directed by Lender and as may be necessary or appropriate to evidence, protect and perfect the Security Interest and shall cause its financial statements to reflect the Security InterestInterest by appropriate footnote.
(f) Lender shall not be required to file any UCC-1 financing statements, mortgages or any other document, or take any other action (including possession of any of the Collateral) in order to validate or perfect the liens and security interests granted to Lender hereunder or under any of the other Loan Documents, as all such Liens and security interests shall be deemed automatically perfected as of the date of the DIP Order. If Lender shall, in its discretion, choose to file such UCC-1 financing statements (or amendments to or continuations of any existing financing statements), mortgages and otherwise confirm perfection of such Liens, all such financing statements, mortgages or similar instruments shall be deemed to have been filed or recorded at the time and on the date of entry of the DIP Order. Lender may, in its discretion, file a certified copy of the DIP Order in any filing or recording office in any jurisdiction in which the Borrower (a) has or maintains any Collateral; (b) has or maintains an office; or (c) is organized.
Appears in 1 contract
Samples: Loan and Security Agreement (United Development Funding III, LP)
