Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith; (ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein; (iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables; (iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon; (v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and (vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 3 contracts
Samples: Pledge and Security Agreement, Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.), Pledge and Security Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral (except Permitted Liens), including, but not limited to, records of and such Grantor shall use commercially reasonable efforts to defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or in material violation of any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected on or prior to have a Material Adverse Effectthe Closing Date pursuant to the Acquisition, it shall perform not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business, type of organization or jurisdiction of organization or establish any trade names unless it shall have complied with the requirements of Section 5.1(j) of the Credit Agreement or otherwise notified Collateral Agent in writing by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with a supplement to Schedule 1 hereto, prior to any such change or establishment; and shall have, prior to any such change or establishment, taken all actions necessary or reasonably requested by Collateral Agent to maintain the continuous validity, perfection and the same or better priority of its obligations with respect Collateral Agent's security interest in the Collateral intended to the Receivablesbe granted and agreed to hereby;
(iv) upon such Grantor obtaining knowledge thereof, it shall not amend, modify, terminate or waive any provision promptly notify Collateral Agent in writing of any Receivable in any manner which event that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it Effect on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereofvalue of the Collateral, (y) release, wholly the ability of any Grantor or partially, any Person liable for Collateral Agent to dispose of the payment thereofCollateral, or (z) allow the rights and remedies of Collateral Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereon;any material portion thereof; and
(v) except as otherwise provided in this subsectionfor Permitted Sales and Permitted Liens, each Grantor it shall continue not take or permit any action which could reasonably be expected to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of materially impair Collateral Agent's security interest rights in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentCollateral.
Appears in 3 contracts
Samples: Pledge and Security Agreement, Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.), Pledge and Security Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it such Grantor shall keep and maintain defend the Collateral against all Persons at its own cost and expense true and complete records of the Receivablesany time claiming any interest therein, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithexcept with respect to Permitted Liens;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or in material violation of any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform not change such Grantor’s name, chief executive office, type of organization or jurisdiction of organization unless it shall have (A) notified Collateral Agent in writing, by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all applicable Supplements to Schedules thereto, at least ten (10) days’ prior to any such change or establishment, identifying such new proposed name, chief executive office, type of its obligations with respect organization or jurisdiction of organization and providing such other information in connection therewith as Collateral Agent may reasonably request and (B) taken all actions necessary or advisable to maintain the Receivablescontinuous validity, perfection and the same or better priority of Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall not amend, modify, terminate or waive any provision promptly notify Collateral Agent in writing of any Receivable in any manner which could reasonably be expected to event that may have a Material Adverse Effect. Other than in Effect on the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal value of the time of payment of Collateral or any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment material portion thereof, or (z) allow the rights and remedies of Collateral Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany material portion thereof;
(v) except as otherwise provided in this subsectionpermitted by the Notes Documents, each Grantor it shall continue to collect all amounts due not take or to become due to such Grantor under the Receivables and permit any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of which could impair Collateral Agent's security interest ’s rights in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonmaterial respect; and
(vi) it shall use commercially reasonable efforts each Grantor will maintain its primary operating and investments accounts in the United States. The Grantors shall, at least once each week, remit to keep Deposit Accounts or Securities Accounts maintained by the Grantors in full force the United States amounts held by them in foreign Deposit Accounts and effect any Supporting Obligation Securities Accounts in the aggregate value in excess of (A) 5,000,000 euro (as determined two (2) Business Days prior to such remittance) plus (B) amounts required to be maintained by or Collateral Support relating paid to any Receivable to the extent advisable foreign governmental authorities for taxes, assessments, levies and duties or in its reasonable business judgmentrespect thereto.
Appears in 3 contracts
Samples: Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) without the prior written consent of Collateral Agent, it shall keep and maintain at its own cost and expense true and complete records not vote to enable or take any other action to: (A) other than in connection with a Permitted Sale, permit any issuer of any Pledged Equity Interest to issue to any Person other than a Grantor any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, or (B) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the Receivables, including, but not limited to, records of all payments received and all credits granted UCC) on the Receivablesdate hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing in this clause (B), such Grantor shall promptly notify Collateral Agent in writing of any such election or action and, in such event, shall take all merchandise returned and all other dealings therewithsteps necessary or advisable to establish Collateral Agent's "control" thereof;
(ii) if requested it shall comply in all material respects with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Investment Related Property; and
(iii) each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to Collateral Agent while and, without limiting the foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to Collateral Agent or its nominee following an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit substitution of Collateral Agent hereunder or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentpowers related thereto.
Appears in 3 contracts
Samples: Pledge and Security Agreement, Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.), Pledge and Security Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested unless otherwise agreed upon by Collateral Agent while an Event of Default is continuingthe Security Agent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral the Security Agent, all Chattel Paper, Instruments (other than checks) in excess of $5 million individually and other evidence of Receivables in excess of $5 million individually (other than any delivered to Collateral the Security Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral the Security Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which in the good faith judgment of such Grantor could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of the Receivables or a substantial portion thereof. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofhereof or with the consent of Security Agent, and except as otherwise provided in subsection (v) below, while following and during the continuance of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, thereof or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue use commercially reasonable efforts to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral the Security Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral the Security Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Security Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral the Security Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral the Security Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral the Security Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral the Security Agent if required, in a collateral account Collateral Account maintained under the sole dominion and control of Collateral the Security Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral the Security Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 3 contracts
Samples: Notes Pledge and Security Agreement (Altice USA, Inc.), Loans Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it It shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral the Administrative Agent, all Chattel Paper, Instruments and other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to Collateral the Administrative Agent as provided herein), as well as the related Receivables Records Records, with an appropriate reference to the fact that Collateral the Administrative Agent has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Administrative Agent’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Administrative Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, Collateral the Administrative Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of Collateral the Administrative Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Administrative Agent and (zB) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done. If Collateral the Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of Collateral the Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the extent advisable in its reasonable business judgmentConcentration Account.
Appears in 3 contracts
Samples: Security Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by upon Collateral Agent while an Event of Default is continuingAgent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected other than in respect of obligations subject to have a Material Adverse Effectgood faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than in the ordinary course of business and while no Event of Default exists, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an no Event of Default is continuingexists, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while during the existence of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (xA) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under (the sole dominion and control of “Collateral AgentAccount”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 3 contracts
Samples: Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) in the event it acquires rights in any Investment Related Property after the date hereof, it shall keep and maintain at its own cost and expense true and complete records deliver to Collateral Agent (in the case of any Investment Related Property subject to the requirements of Section 5.10 of the ReceivablesCredit Agreement, includingwithin the time periods set forth therein) a completed Pledge Supplement, but substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, reflecting such new Investment Related Property. Notwithstanding the foregoing, it is understood and agreed that the security interest of Collateral Agent shall attach to all Investment Related Property immediately upon any Grantor's acquisition of rights therein and shall not limited to, records be affected by the failure of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithany Grantor to deliver a supplement to Schedule 3 as required hereby;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslyexcept as provided in the next sentence, in form and manner reasonably satisfactory to Collateral Agentthe event such Grantor receives any dividends, all Chattel Paperinterest or distributions on any Investment Related Property, Instruments and or any securities or other evidence of Receivables (other than any delivered to Collateral Agent as provided herein)property upon the merger, as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effectconsolidation, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate liquidation or waive any provision dissolution of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment issuer of any ReceivableInvestment Related Property, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, then (y) releasesuch dividends, wholly interest or partially, any Person liable for distributions and securities or other property shall be included in the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor definition of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; without further action and (z) enforcesuch Grantor shall promptly take all steps, at if any, necessary or advisable to ensure the expense validity, perfection, priority and, if applicable, control of Collateral Agent over such GrantorInvestment Related Property (including, collection of without limitation, delivery thereof to Collateral Agent) and pending any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by action such Grantor shall be forthwith (and in any event within two Business Days) deposited by deemed to hold such Grantor in the exact form receiveddividends, duly indorsed by such Grantor to Collateral Agent if requiredinterest, in a collateral account maintained under the sole dominion and control of Collateral Agentdistributions, and until so turned over, all amounts and proceeds (including checks and securities or other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received property in trust for the benefit of Collateral Agent hereunder and shall be segregated segregate such dividends, distributions, Securities or other property from all other funds property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, Collateral Agent authorizes each Grantor to retain all cash dividends and distributions and all scheduled payments of principal and interest, in each case to the extent such Grantor shall not adjustdividends, settle or compromise distributions and scheduled payments are permitted under the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCredit Agreement; and
(viiii) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable each Grantor consents to the extent advisable grant by each other Grantor of a Security Interest in its reasonable business judgmentall Investment Related Property to Collateral Agent.
Appears in 3 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Medical Device Manufacturing, Inc.), Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it shall keep and maintain in addition to any rights under this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense true and complete records any time notify, or require Grantor to so notify, the counterparty on any Material Contract of the Receivablessecurity interest of the Collateral Agent therein. In addition, includingafter the occurrence and during the continuance of an Event of Default, but not limited tothe Collateral Agent may upon written notice to Grantor, records of notify, or require Grantor to notify, the counterparty to make all payments received and all credits granted on under the Receivables, all merchandise returned and all other dealings therewithMaterial Contracts directly to the Collateral Agent;
(ii2) if requested by such Grantor shall deliver promptly to the Collateral Agent while an Event a copy of Default is continuingeach material demand, notice or document received by it relating in any way to any Material Contract;
(3) such Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory deliver promptly to the Collateral Agent, all Chattel Paperand in any event within ten (10) Business Days, Instruments and other evidence after (1) any Material Contract of Receivables such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (other than 2) any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference (to the fact that Collateral Agent has a security interest thereinextent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Agreement, and an explanation of any actions being taken with respect thereto);
(iii4) except as could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall perform in all material respects all of its obligations with respect to the ReceivablesMaterial Contracts;
(iv5) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation promptly and diligently exercise each material right (except the right of termination) it may have under any Receivable Material Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi6) it such Grantor shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentMaterial Contract.
Appears in 3 contracts
Samples: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems Inc), Security Agreement (Viking Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(i) It will promptly notify the Collateral Agent in writing of any change (A) in its legal name, (B) in the location of its chief executive office, principal place of business, any office in which it maintains books or records relating to any of the Collateral owned or held by it or on its behalf or, except to the extent permitted by Section 3.1(b)(vii) or Section 3.2, any office or facility at which any such Collateral is located (including the establishment of any such new office or facility), (C) in its identity or legal or organizational structure or its jurisdiction of formation, or (D) in its Federal Taxpayer Identification Number. It agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral with the priority required hereby.
(ii) It shall keep and maintain maintain, at its own cost and expense true expense, such complete and complete records of accurate Records with respect to the Receivables, includingCollateral owned or held by it or on its behalf as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which it is engaged, but not limited to, records of in any event to include complete accounting Records indicating all payments and proceeds received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event with respect to any part of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;such Collateral.
(iii) except as could It shall, at its own cost and expense, take any and all actions reasonably necessary to defend title to the Collateral owned or held by it or on its behalf against all Persons and to defend the Security Interest in such Collateral and the priority thereof against any Lien or other interest not reasonably be expected to have a Material Adverse Effectexpressly permitted by the Secured Transaction Documents, and in furtherance thereof, it shall perform all of its obligations with respect not take, or permit to be taken, any action not otherwise expressly permitted by the Receivables;Secured Transaction Documents that could impair the Security Interest or the priority thereof or any Secured Party’s rights in or to such Collateral.
(iv) The Collateral Agent and such Persons as the Collateral Agent may designate shall have the right, at the cost and expense of such Grantor, to inspect all of its Records (and to make extracts and copies from such Records), to discuss its affairs with its officers and (to the extent consented to by such independent accountants) independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Collateral owned or held by or on behalf of such Grantor, including, in the case of Receivables, Pledged Debt, General Intangibles, Commercial Tort Claims or Collateral in the possession of any third person, by contacting Account Debtors, contract parties or other obligors thereon or any third person possessing such Collateral for the purpose of making such a verification. The Collateral Agent shall maintain the confidentiality of all such information and shall have the absolute right to share on a confidential basis any information it gains from such inspection or verification with any Secured Party.
(v) At its option, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral owned or held by or on behalf of such Grantor, and not permitted by the Secured Transaction Documents, and may pay for the maintenance and preservation of such Collateral to the extent such Grantor fails to do so as required by the Secured Transaction Documents, and such Grantor agrees, jointly with the other Grantors and severally, to reimburse the Collateral Agent on demand for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any other Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Secured Transaction Documents.
(vi) It shall not be excused from liability as a result of granting of the security interest pursuant to this Guaranty and Security Agreement to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral owned or held by it or on its behalf, all in accordance with the terms and conditions thereof and it agrees, jointly with the other Grantors and severally, to indemnify and hold harmless the Collateral Agent and the other Secured Parties from and against any and all liability for such performance.
(vii) It shall not make, or permit to be made, an assignment, pledge or hypothecation of the Collateral owned or held by it or on its behalf, or grant any other Lien in respect of such Collateral, except as expressly permitted by the Secured Transaction Documents. Except as expressly permitted by the Secured Transaction Documents, it shall not amendmake or permit to be made any transfer of such Collateral, modifyand it shall remain at all times in possession of such Collateral and the direct owner, terminate or waive any provision beneficially and of any Receivable record, of the Pledged Equity Interests included in any manner which could reasonably such Collateral, except that (A) Inventory may be expected to have a Material Adverse Effect. Other than sold in the ordinary course of business as generally conducted by and (B) unless and until the Collateral Agent shall notify it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while that an Event of Default is continuingshall have occurred and be continuing and that, such Grantor during the continuance thereof, it shall not (w) grant any extension sell, convey, lease, assign, transfer or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection dispose of any such Receivables Collateral (which notice may be given by telephone if promptly confirmed in writing), it may use and to adjust, settle or compromise the amount or payment thereof, dispose of such Collateral in the same any lawful manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance not inconsistent with the preceding sentence, provisions of this Guaranty and Security Agreement or any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentSecured Transaction Document.
Appears in 2 contracts
Samples: Guaranty and Security Agreement (Vyyo Inc), Guaranty and Security Agreement (Vyyo Inc)
Covenants and Agreements. Each Grantor hereby The Pledgor covenants and agrees thatthat on and after the date hereof until the payment in full of the Secured Obligations and the termination and discharge of the Secured Agreements, unless the Collateral Agent shall otherwise consent in writing:
(ia) it shall keep At any time and maintain at its own cost and expense true and complete records from time to time, upon the request of the ReceivablesCollateral Agent (at the written direction of the Acting Secured Parties (as defined below)), and at the sole expense of the Pledgor, the Pledgor shall promptly do, file, record, execute and deliver any and all such further notices, instruments and documents and will take such further action as may be necessary or reasonably desirable to obtain, protect and perfect the security interests granted hereby and enforce and give effect to the rights, remedies and powers hereunder, including, but not limited towithout limitation, records the recording or filing of all payments received instruments and all credits documents reasonably necessary to perfect and protect the perfection of the security interests granted on hereby under Articles 8 or 9 of the ReceivablesUniform Commercial Code in effect in any applicable jurisdiction. In connection therewith, the Collateral Agent is hereby irrevocably authorized and empowered as the Pledgor's attorney-in-fact, solely to make, at the Collateral Agent's option, all merchandise returned filings and to give all other dealings therewith;
(ii) if requested by notices as it shall reasonably deem necessary with respect to any of the Collateral, all of which may be done with or without the signature of the Pledgor. The Pledgor agrees that the foregoing power constitutes a power coupled with an interest which shall survive until the payment in full of all of the Secured Obligations. The Pledgor agrees to reimburse the Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form on demand for any actual and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments reasonable expenses (including reasonable attorneys' fees and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations expenses with respect to the Receivables;
(ivCollateral Agent, including reasonable allocated costs and expenses of in-house counsel and legal staff) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in incurred by the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and Agent in connection with such collections and exercisematters and, until such reimbursement, such Grantor expenses shall take such action as such Grantor may deem necessary or advisablebe a part of the Secured Obligations. Notwithstanding The Pledgor agrees that the foregoing, Collateral Agent shall have is authorized and empowered to file financing statements and continuation statements with respect to the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforcejurisdictions as it deems appropriate. "Acting Secured Parties" shall mean, at the expense of such Grantor, collection as of any such Receivables and to adjustdate of determination, settle or compromise the amount or payment thereofSecured Parties holding (or, in the same manner case of the Original Trustee and the New Trustee, acting as trustee for the Original Notes or the New Notes, as applicable) more than 20% of the sum of (a) the unpaid principal amount of the Original Notes, (b) the unpaid Accreted Value of the New Notes, (c) the unpaid Accreted Value of the Convertible Notes, (d) the unpaid principal amount owing under the GM Convertible Notes, (e) the unpaid principal amount owing under the GM Loan Agreement, and (f) the unpaid principal amount owing under the Additional Debt (if any), or, if such debt is issued at a discount, the unpaid accreted value of such Additional Debt. Any action taken by the Original Trustee or the New Trustee shall constitute an action on behalf of all of the Original Holders or New Holders, as applicable, without regard to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect percentage of the Receivables, any Supporting Obligation Original Holders or Collateral Support shall be received in trust for New Holders directing or authorizing the benefit of Collateral Agent hereunder and shall be segregated from other funds of Original Trustee or the New Trustee to take such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentaction.
Appears in 2 contracts
Samples: Security Agreement (Xm Satellite Radio Inc), Security Agreement (Xm Satellite Radio Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that, except as otherwise permitted pursuant to the Credit Agreement:
(i) it shall keep and maintain at its own cost and expense true proper books of record and complete records account in accordance with subsection 6.1 of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithCredit Agreement;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of its business (as generally conducted determined by it on and prior to the date hereofGrantor in good faith), and except as otherwise provided in subsection (viii) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsectionSection 4.3(a), each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to in accordance with customary practice in the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableinformation-technology security industry. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: shall have the right at any time to (x1) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation; (2) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y3) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z4) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) it shall use commercially its reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentexcess of $500,000.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables, except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while following an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Revolving Credit Pledge and Security Agreement (NewPage Energy Services LLC), Revolving Credit Pledge and Security Agreement (NewPage Holding CORP)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best commercial efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Joe's Jeans Inc.), Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it such Grantor shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii2) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) it such Grantor shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it such Grantor on and prior to the date hereof, and except as otherwise provided in subsection (v5) below, while following an Event of Default is continuingDefault, such Grantor shall not not, without the prior written consent of the Collateral Agent (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable in an amount in excess of One Hundred Thousand Dollars ($100,000) for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v4) at the reasonable request of the Collateral Agent, such Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(5) except as otherwise provided in this subsection, each such Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) and subject to Section 8 below, enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral into an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi6) it such Grantor shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Security Agreement (Viking Systems Inc), Security Agreement (St Cloud Capital Partners Lp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of To the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuingextent reasonably practicable, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral the Administrative Agent, all Chattel Paper, Instruments and other evidence of Receivables any Accounts (other than any delivered to Collateral the Administrative Agent as provided herein), as well as the Receivables Records related Records, with an appropriate reference to the fact that Collateral the Administrative Agent has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Administrative Agent’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any ReceivableAccount, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection, each Grantor it shall continue to collect all amounts due or to become due to such Grantor it under the Receivables all Accounts and any Supporting Obligation Obligations relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Administrative Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoingforegoing and in addition to all other rights and remedies, Collateral the Administrative Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such Grantor to notify, any Account Debtor with respect to any such Account or Supporting Obligation of Collateral the Administrative Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Administrative Agent and (zB) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done. If Collateral the Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Account or Supporting Obligation in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of Collateral the Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary endorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and
(vi) it . Each Grantor shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentAccount.
Appears in 2 contracts
Samples: Security Agreement (Titan Machinery Inc.), Credit Agreement (Titan Machinery Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Material Receivables, including, but not limited to, the originals of all material documentation with respect thereto and records of all payments received and all credits granted on the Receivablesthereon, all material merchandise returned and all material other dealings therewith;
(ii) if requested by Collateral Agent while during the continuance of an Event of Default is continuingDefault, it shall xxxx conspicuously, in form and manner reasonably satisfactory with an appropriate reference to the fact that Collateral AgentAgent has a security interest therein, all Chattel Paper, Instruments and other evidence of Material Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Material Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinRecords;
(iii) except as could not reasonably be expected other than in respect of obligations subject to have a Material Adverse Effectgood faith disputes, it shall perform in all material respects all of its obligations with respect to the Material Receivables;
(iv) other than in the ordinary course of business and while no Event of Default exists, it shall not amend, modify, terminate or waive any provision of any Material Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business and so long as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an no Event of Default is continuingexists, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Material Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any material credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Material Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Material Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent (acting at the written direction of Majority Holders) shall have the right at any time while during the existence of an Event of Default is continuing and, following notice to Grantors, to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, pursuant to the Note Documents Collateral Agent (acting at the written direction of Majority Holders) may: (xA) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under (the sole dominion and control of “Collateral AgentAccount”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentMaterial Receivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Akoustis Technologies, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith[Reserved];
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used (A) in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence violation of Receivables any provision of this Agreement or (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iiiB) except as could not reasonably be expected to have result in a Material Adverse EffectImpairment, unlawfully or in material violation of any applicable material statute, regulation or ordinance or any policy of insurance covering the Collateral;
(iii) it shall perform all not change its name, type of its obligations with respect organization, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) unless it shall (A) promptly after such change or establishment notify the Collateral Agent in writing, by executing and delivering to the ReceivablesCollateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, of any such change or establishment, identifying such new proposed name, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure and providing the Collateral Agent with copies of any relevant filings and such other information in connection therewith as is necessary to maintain the perfection of any Lien and (B) take all actions required by applicable law, to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) to the extent required by the Indenture, it shall not amendpay promptly when due all property and other taxes, modifyassessments and governmental charges or levies imposed upon, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in and all claims (including claims for labor, materials and supplies) against, the ordinary course of business as generally conducted by it on and prior Collateral, except to the date hereof, and except as otherwise provided extent the validity thereof is being contested in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereongood faith;
(v) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor permitted under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect Section 4.10 of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonIndenture; and
(vi) it shall use commercially reasonable efforts to keep in full force unless and effect any Supporting Obligation or until all of the Equity Interests of and intercompany notes issued by Xxxxxxxxxxx & Co. Inc. are pledged as Collateral Support relating to any Receivable without regard to the extent advisable limitation described in its reasonable business judgmentSection 1.04(c) or (d), Xxxxxxxxxxx & Co. Inc. shall remain a direct Wholly Owned Subsidiary of Viner Finance Inc. and the Company shall not permit such Equity Interests or intercompany loans to be subject to other Liens.
Appears in 2 contracts
Samples: Security Agreement (Oppenheimer Holdings Inc), Security Agreement (Oppenheimer Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, Receivables in its reasonable business judgment and consistent with its past practice including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on the such Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofand, and except as otherwise provided in subsection (viii) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent (acting pursuant to the direction it receives under the Indenture), may deem necessary or advisable. Notwithstanding the foregoing, subject to the Intercreditor Agreement (if applicable), the Collateral Agent shall have the right at any time while during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following delivery by the occurrence and during Trustee to the continuation Company of notice of an Event of Default, the Collateral Agent may: may (xacting at the written direction of Holders owning a majority of the aggregate outstanding principal amount of the Notes), subject to the Intercreditor Agreement (if applicable) (A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account Securities Account or Deposit Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Security Agreement (Oppenheimer Holdings Inc), Security Agreement (Oppenheimer Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records At the reasonable request of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuingAgent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments (other than checks received in the ordinary course of business) and other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Collateral Agent’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection and unless otherwise determined by such Grantor in accordance with its good faith business judgment, each Grantor it shall continue to use its best efforts to collect all amounts due or to become due to it under all such Grantor under the Receivables and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Collateral Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while upon the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; Agent and (zB) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done. If the Collateral Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to business, during the date hereof, and except as otherwise provided in subsection (v) below, while continuance of an Event of Default is continuingDefault, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;; and
(vii) except as otherwise provided in this subsection, each Grantor shall continue use its commercially reasonable efforts to collect all amounts due or to become due to such Grantor under the Receivables any Receivable and any Supporting Obligation and diligently to exercise each material right it may have under any Receivable any Supporting Obligation or Collateral SupportReceivable, in each case, at its own expense and to expense. If so required by the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following after the occurrence and during the continuation continuance of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such any Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account Securities Account or Deposit Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, ; or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Education Management Corporation), Pledge and Security Agreement (AID Restaurant, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it such Grantor shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii2) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) it such Grantor shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it such Grantor on and prior to the date hereof, and except as otherwise provided in subsection (v5) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable in an amount in excess of One Hundred Thousand Dollars ($100,000) for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v4) at the reasonable request of the Collateral Agent, such Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(5) except as otherwise provided in this subsection, each such Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) and subject to Section 8 below, enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral into an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi6) it such Grantor shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Prolong International Corp), Pledge and Security Agreement (St Cloud Capital Partners Lp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following Following the occurrence of and during the continuation of an Event of Default, the Collateral Agent may: shall have the right at any time, upon concurrent written notice to the Grantor of its intention to do so, (xi) to notify, or direct the Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (ii) to direct, or request that the Grantor direct, such Account Debtors under any Receivables to make payment of all amounts due or to become due to such the Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (ziii) enforce, upon such concurrent notification and at the expense of such the Grantor, to enforce collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such the Grantor might have done. If After receipt by the Grantor of written notice from the Collateral Agent notifies any Grantor that it has elected referred to collect the Receivables in accordance with the preceding sentence, any payments of Receivables constituting Collateral received by such the Grantor shall be forthwith (and in any event within two five Business Days) deposited by such the Grantor in the exact form received, received duly indorsed by such the Grantor to the Collateral Agent if required, in a collateral an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such the Grantor in respect of the Receivablesits Receivables constituting Collateral, any Supporting Obligation constituting Collateral or Collateral Support constituting Collateral shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such the Grantor and such the Grantor shall not adjust, settle or compromise the amount or payment of any ReceivableReceivable constituting Collateral, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 2 contracts
Samples: Assignment and Acceptance (Exelon Generation Co LLC), Credit Agreement (Potomac Electric Power Co)
Covenants and Agreements. Each Grantor hereby covenants 5.1. Conduct of Business of the Company Pending the Merger. Except as contemplated by this Agreement or as expressly agreed to in writing by Parent, during the period from the date of this Agreement to the earlier of (i) the termination of this Agreement or (ii) the Effective Time, each of the Company and agrees thatits Subsidiaries will conduct their respective operations according to its ordinary course of business consistent with past practice, and will use commercially reasonable best efforts consistent with past practice and policies to preserve intact its business organization, to keep available the services of its officers and employees and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it and will take no action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement, or the timing thereof. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Effective Time, the Company will not nor will it permit any of its Subsidiaries to, without the prior written consent of Parent:
(ia) it shall keep and maintain at amend any of its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithCharter Documents or Governing Documents;
(b) authorize for issuance, issue, sell, deliver, grant any options, warrants, stock appreciation rights, or stock issuance rights for, or otherwise agree or commit to issue, sell, deliver, pledge, dispose of or otherwise encumber any shares of any class of its capital stock or any securities convertible into shares of any class of its capital stock, except (i) pursuant to and in accordance with the terms of Company Options outstanding on the Company Measurement Date or granted pursuant to clause (ii) if requested below, or (ii) the grant of Company Options consistent with past practices to new employees, which Company Options will represent the right to acquire no more than 15,000 shares of Company Common Stock per new employee; provided however, that the current form of agreement under the Company Stock Option Plans shall be amended to no longer include any provisions providing for acceleration of vesting upon a change of control, and any other form used by Collateral Agent while an Event the Company shall be in a form reasonably acceptable to Parent;
(c) subdivide, cancel, consolidate or reclassify any shares of Default is continuingits capital stock, it shall xxxx conspicuouslyissue or authorize the issuance of any other securities in respect of, in form and manner reasonably satisfactory to Collateral Agentlieu of or in substitution for shares of its capital stock, all Chattel Paperdeclare, Instruments and set aside or pay any dividend or other evidence distribution (whether in cash, shares or property or any combination thereof) in respect of Receivables its capital stock or purchase, redeem or otherwise acquire any shares of its own capital stock or of any of its Subsidiaries, except as otherwise expressly provided in this Agreement;
(d) (i) incur or assume any long-term or short-term debt or issue any debt securities except for borrowings under existing lines of credit in the ordinary course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other person (other than Subsidiaries of the Company); or (iii) make any delivered material loans, advances or capital contributions to, or investments in, any other person (other than to Collateral Agent as provided hereinSubsidiaries of the Company), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iiie) except as could otherwise expressly contemplated by this Agreement, (i) increase in any manner the compensation of (A) any employee who is not reasonably be expected to have an officer of the Company or any Subsidiary (a Material Adverse Effect“Non-Executive Employee”), it shall perform all except in the ordinary course of business consistent with past practice or (B) any of its obligations directors or officers, except in the ordinary course of business, consistent with past practice, after consultation with Parent, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not required, or enter into, amend or agree to enter into or amend any agreement or arrangement with any such director or officer or employee, whether past or present, relating to any such pension, retirement allowance or other employee benefit, except as required to comply with law or under currently existing agreements, plans or arrangements or with respect to Non-Executive Employees, in the Receivablesordinary course of business consistent with past practice, provided, however, that the vesting of outstanding options held by officers or directors may be accelerated; (iii) grant any rights to receive any severance or termination pay to, or enter into or amend any employment or severance agreement with, any employee or any of its directors or officers, except as required by applicable law or with respect to severance or termination pay to Non-Executive Employees in the ordinary course of business, consistent with past practices; or (iv) except as may be required to comply with applicable law, become obligated (other than pursuant to any new or renewed collective bargaining agreement) under any new pension plan, welfare plan, multi-employer plan, employee benefit plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, including any bonus, incentive, deferred compensation, share purchase, share option, share appreciation right, group insurance, severance pay, retirement or other benefit plan, agreement or arrangement, or employment or consulting agreement with or for the benefit of any person, or amend any of such plans or any of such agreements in existence on the date hereof; provided, however, that this clause (iv) shall not prohibit the Company from renewing any such plan, agreement or arrangement already in existence on terms no more favorable to the parties to such plan, agreement or arrangement;
(ivf) it shall not amendexcept as otherwise expressly contemplated by this Agreement, modifyenter into, terminate or waive any provision of any Receivable amend in any manner which could reasonably be expected to have a material respect or terminate any Company Material Adverse Effect. Other Contracts other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding consistent with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonpast practice;
(vg) sell, lease, license, mortgage or dispose of any of its properties or assets, other than (i) transactions in the ordinary course of business consistent with past practice, (ii) sales of assets, for the fair market value thereof, which sales do not individually or in the aggregate exceed $100,000 or (iii) as may be required or contemplated by this Agreement;
(h) except as otherwise contemplated by the Merger, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than the acquisition of assets that is in the ordinary course of business consistent with past practice and which are contemplated within the budget previously provided in this subsectionwriting by the Company to the Parent without the prior written consent of Parent, each Grantor which consent will not be unreasonably withheld;
(i) alter (through merger, liquidation, reorganization, restructuring or in any fashion) the corporate structure or ownership of the Company or any Subsidiary;
(j) authorize or commit to make any material capital expenditures not within the budget previously provided in writing by the Company to Parent without the prior written consent of Parent, which consent shall continue to collect all amounts due not be unreasonably withheld;
(k) make any change in the accounting methods or to become due to such Grantor under accounting practices followed by the Receivables and Company, except as required by generally accepted accounting principles or applicable law;
(l) make any Supporting Obligation and diligently exercise each material right it may have election under any Receivable any Supporting Obligation applicable Tax laws which would, individually or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and aggregate, have a Company Material Adverse Effect;
(m) settle any Supporting Obligation andaction, suit, claim, investigation or proceeding (legal, administrative or arbitrative) requiring a payment by the Company or its Subsidiaries in additionexcess of $200,000 without the consent of Parent, at which consent shall not be unreasonably withheld or delayed;
(n) pay, discharge or satisfy any time following claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the occurrence and during the continuation of an Event of Defaultpayment, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due discharge or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereofsatisfaction, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables ordinary course of business consistent with past practice or in accordance with their terms, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the preceding sentence, any payments most recent financial statements (or the notes thereto) of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor the Company included in the exact form receivedCompany SEC Reports or incurred in the ordinary course of business consistent with past practice; or
(o) agree or enter into any contract, duly indorsed by such Grantor agreement, commitment or arrangement to Collateral Agent if requireddo any of the foregoing; provided, in a collateral account maintained however, that nothing contained herein shall limit the ability of Parent to exercise its rights under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Power Technology Inc), Merger Agreement (Microsemi Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) Other than as permitted under the Credit Agreement or without the prior written consent of the Collateral Agent, it shall keep and maintain at its own cost and expense true and complete records not vote to enable or take any other action to cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the Receivables, including, but not limited to, records of all payments received and all credits granted UCC) on the Receivablesdate hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing in this clause (i), such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all merchandise returned and all other dealings therewith;steps necessary or advisable to establish the Collateral Agent’s “control” thereof; and
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference each Grantor consents to the fact that Collateral Agent has grant by each other Grantor of a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all of its obligations with respect Investment Related Property to the Receivables;
(iv) it shall not amendCollateral Agent and, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding without limiting the foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time its nominee following the occurrence and during the continuation continuance of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner Default and to the same extent as such Grantor might have done. If substitution of the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and or its nominee as a partner in any event within two Business Days) deposited by such Grantor partnership or as a member in any limited liability company with all the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion rights and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentpowers related thereto.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Education Management Corporation), Pledge and Security Agreement (AID Restaurant, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it each Grantor shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it each Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it except as otherwise consented to by the Administrative Agent at its sole option, with respect to each Receivable that is included in the Borrowing Base: (A) no Grantor shall not amend, modify, terminate or waive any provision of any such Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other Effect on the value of such Receivable as Collateral; and (B) other than in the ordinary course Ordinary Course of business Business as generally conducted by it Borrowers on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such no Grantor shall not (w1) grant any extension or renewal of the time of payment of any such Receivable, (x2) compromise or settle any dispute, claim or legal proceeding with respect to any such Receivable for less than the total unpaid balance thereof, (y3) release, wholly or partially, any Person liable for the payment thereofof any such Receivable, or (z4) allow any credit or discount thereonon any such Receivable;
(v) except as otherwise provided in this subsectionsubsection or as consented to by the Administrative Agent at its sole option, each Grantor shall continue to collect all amounts due or to become due to such Grantor under each Receivable that is included in the Receivables Borrowing Base and any Supporting Obligation and diligently exercise each material right it may have under any such Receivable or any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Administrative Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such any Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such GrantorGrantors, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such any Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such each Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it each Grantor shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other material dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records Records, with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsectionsubsection (v), each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: First Lien Pledge and Security Agreement (Arizona Chemical Ltd.), Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii2) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v5) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v4) it shall mxxx conspicuously, in form and manner reasonably satisfactory to the Secured Party, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Secured Party as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Secured Party has a security interest therein;
(5) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Secured Party may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent the Secured Party shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's the Secured Party’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent the Secured Party may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agentthe Secured Party; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agentthe Secured Party; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent the Secured Party notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent the Secured Party if required, in a collateral account the Collateral Account maintained under the sole dominion and control of Collateral Agentthe Secured Party, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent the Secured Party hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi6) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Xfit Brands, Inc.), Pledge and Security Agreement (Xfit Brands, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent (or its agent or designee) as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables, except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while following an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Revolving Credit Pledge and Security Agreement, Revolving Credit Pledge and Security Agreement (NewPage CORP)
Covenants and Agreements. Each Grantor hereby covenants (a) Escrow Agent agrees to hold and agrees that:disburse the Escrowed Funds subject to the terms and conditions contained in this Escrow Agreement and the Purchase Agreement. The provisions of this Escrow Agreement shall control in the event of any conflict between the provisions hereof and the provisions of the Purchase Agreement.
(b) Unless otherwise provided for in this Escrow Agreement or any addendum thereto, Escrow Agent shall disburse the Escrowed Funds without interest or other accumulation in value.
(c) Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(d) The fees and expenses of the Escrow Agent or otherwise relating to the Escrow Account shall be borne by the Company.
(e) The Company and the Purchasers acknowledge and agree that nothing in this Escrow Agreement shall prohibit Escrow Agent from (i) it shall keep and maintain at its own cost and expense true and complete records serving in a similar capacity on behalf of the Receivablesothers, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
or (ii) if requested by Collateral acting in the capacity of attorneys for the Company.
(f) The Escrow Agent while an Event shall be entitled to rely upon the accuracy, act in reliance upon the contents, and assume the genuineness of Default any notice, instruction, certificate, signature, instrument or other document that is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference given to the fact that Collateral Escrow Agent has a security interest therein;pursuant to this Agreement without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be obligated to make any inquiry as to the authority, capacity, existence or identity of any person purporting to give any such notice or instructions or to execute any such certificate, instrument or other document.
(iiig) except In the event Escrow Agent shall be uncertain as could not reasonably be expected to have a Material Adverse Effectits duties or rights hereunder or shall receive instructions, it shall perform all of its obligations claims or demands from the Company and/or Purchasers or from third persons with respect to the Receivables;
(iv) Escrowed Funds, which, in its sole opinion, are in conflict with any provisions of this Escrow Agreement and/or the Purchase Agreement, or which are in conflict with any other instructions, claims or demands from another party, the Escrow Agent shall be entitled to refrain from taking any action until it shall not amend, modify, terminate be directed otherwise in writing by the Company or waive any provision by a final order or judgment of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course court of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentcompetent jurisdiction.
Appears in 2 contracts
Samples: Escrow Agreement (Solomon Technologies Inc), Escrow Agreement (Solomon Technologies Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Priority Lien Collateral AgentTrustee, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Priority Lien Collateral Agent Trustee as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Priority Lien Collateral Agent Trustee has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables, except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the Priority Lien Collateral Agent Trustee shall have the right at any time while following an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Priority Lien Collateral Agent's Trustee’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Priority Lien Collateral Agent Trustee may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Priority Lien Collateral AgentTrustee; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Priority Lien Collateral AgentTrustee; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Priority Lien Collateral Agent Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Priority Lien Collateral Agent Trustee if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Priority Lien Collateral AgentTrustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Priority Lien Collateral Agent Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it shall keep and maintain in addition to any rights under this Agreement relating to Receivables, the Collateral Agent may at its own cost and expense true and complete records any time notify, or require any Grantor to so notify, the counterparty on any Material Contract of the Receivablessecurity interest of the Collateral Agent therein. In addition, includingafter the occurrence and during the continuance of an Event of Default, but not limited tothe Collateral Agent may upon written notice to the applicable Grantor, records of notify, or require any Grantor to notify, the counterparty to make all payments received and all credits granted on under the Receivables, all merchandise returned and all other dealings therewithMaterial Contracts directly to the Collateral Agent;
(ii2) if requested by such Grantor shall deliver promptly to the Collateral Agent while an Event a copy of Default is continuingeach material demand, notice or document received by it relating in any way to any Material Contract;
(3) such Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory deliver promptly to the Collateral Agent, all Chattel Paperand in any event within ten (10) Business Days, Instruments and other evidence after (1) any Material Contract of Receivables such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (other than 2) any new Material Contract is entered into by such Grantor, a written statement describing such event, with copies of such material amendments or new contracts, delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference (to the fact that Collateral Agent has a security interest thereinextent such delivery is permitted by the terms of any such Material Contract, provided, no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Agreement, and an explanation of any actions being taken with respect thereto);
(iii4) except as could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall perform in all material respects all of its obligations with respect to the ReceivablesMaterial Contracts;
(iv5) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation promptly and diligently exercise each material right (except the right of termination) it may have under any Receivable Material Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi6) it such Grantor shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentMaterial Contract.
Appears in 2 contracts
Samples: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(i) It will promptly notify the Collateral Agent in writing of any change (A) in its legal name, (B) in the location of its chief executive office, principal place of business, any office in which it maintains books or records relating to any of the Collateral owned or held by it or on its behalf or, except to the extent permitted by Section 3.1(b)(vii) or Section 3.2, any office or facility at which any such Collateral is located (including the establishment of any such new office or facility), (C) in its identity or legal or organizational structure or its jurisdiction of formation, or (D) in its Federal Taxpayer Identification Number. It agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral with the priority required hereby.
(ii) It shall keep and maintain maintain, at its own cost and expense true expense, such complete and complete records of accurate Records with respect to the Receivables, includingCollateral owned or held by it or on its behalf as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which it is engaged, but not limited to, records of in any event to include complete accounting Records indicating all payments and proceeds received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event with respect to any part of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;such Collateral.
(iii) except as could It shall, at its own cost and expense, take any and all actions reasonably necessary to defend title to the Collateral owned or held by it or on its behalf against all Persons and to defend the Security Interest in such Collateral and the priority thereof against any Lien or other interest not reasonably be expected to have a Material Adverse Effectexpressly permitted by the Secured Transaction Documents, and in furtherance thereof, it shall perform all of its obligations with respect not take, or permit to be taken, any action not otherwise expressly permitted by the Receivables;Secured Transaction Documents that is reasonably likely to impair the Security Interest or the priority thereof or any Secured Party’s rights in or to such Collateral in violation hereof.
(iv) The Collateral Agent and such Persons as the Collateral Agent may designate shall have the right at reasonable times and on reasonable notice, at the cost and expense of such Grantor, to inspect all of its Records (and to make extracts and copies from such Records), to discuss its affairs with its officers and (to the extent consented to by such independent accountants) independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Collateral owned or held by or on behalf of such Grantor, including, upon the occurrence and during the continuance of any Event of Default, in the case of Receivables, Pledged Debt, General Intangibles, Commercial Tort Claims or Collateral in the possession of any third person, by contacting Account Debtors, contract parties or other obligors thereon or any third person possessing such Collateral for the purpose of making such a verification. The Collateral Agent shall maintain the confidentiality of all such information and shall have the absolute right to share on a confidential basis any information it gains from such inspection or verification with any Secured Party.
(v) At its option, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral owned or held by or on behalf of such Grantor, and not permitted by the Secured Transaction Documents, and may pay for the maintenance and preservation of such Collateral to the extent such Grantor fails to do so as required by the Secured Transaction Documents, and such Grantor agrees, jointly with the other Grantors and severally, to reimburse the Collateral Agent on demand for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any other Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Secured Transaction Documents.
(vi) It shall not be excused from liability as a result of granting of the Security Interest pursuant to this Guarantee and Security Agreement to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral owned or held by it or on its behalf, all in accordance with the terms and conditions thereof and it agrees, jointly with the other Grantors and severally, to indemnify and hold harmless the Collateral Agent and the other Secured Parties from and against any and all liability for such performance.
(vii) It shall not make, or permit to be made, an assignment, pledge or hypothecation of the Collateral owned or held by it or on its behalf, or grant any other Lien in respect of such Collateral, except Permitted Liens. Except as expressly permitted by the Secured Transaction Documents, it shall not amendmake or permit to be made any transfer of such Collateral, modifyand it shall remain at all times in possession of such Collateral and the direct owner, terminate or waive any provision beneficially and of any Receivable record, of the Pledged Equity Interests included in any manner which could reasonably such Collateral, except that (A) Inventory may be expected to have a Material Adverse Effect. Other than sold in the ordinary course of business as generally conducted by and (B) unless and until the Collateral Agent shall notify it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while that an Event of Default is continuingshall have occurred and be continuing and that, such Grantor during the continuance thereof, it shall not (w) grant any extension sell, convey, lease, assign, transfer or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection dispose of any such Receivables Collateral (which notice may be given by telephone if promptly confirmed in writing), it may use and to adjust, settle or compromise the amount or payment thereof, dispose of such Collateral in the same any lawful manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance not inconsistent with the preceding sentence, provisions of this Guarantee and Security Agreement or any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentSecured Transaction Document.
Appears in 2 contracts
Samples: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuingrequested, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory to tx xxe Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while upon the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x) direct shall have the Account Debtors under right at any Receivables time to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which any Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Debtor of the Collateral Agent; and (z) enforce, at 's security interest in the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for and, the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjustmay, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable subject to the extent advisable in its reasonable business judgment.Intercreditor Agreement: (1)
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants SECTION 5.1 Conduct of NACO and agrees that:ABC. From the date hereof until the Effective Time, NACO and ABC and their respective Subsidiaries shall, and ABC shall use its reasonable efforts to cause its Affiliated Entities to, conduct their businesses in the ordinary course and to use their reasonable best efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the foregoing, other than as specifically contemplated by this Agreement or with the written consent of ABC, in the case of NACO, or NACO, in the case of ABC (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, neither NACO nor ABC shall (and neither shall permit any of its respective Subsidiaries to, and ABC shall use its reasonable efforts to not permit its Affiliated Entities to):
(a) declare, set aside or pay any dividend or other distribution with respect to any shares of capital stock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of NACO or ABC to its parent) or repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other equity securities of, or other ownership interests in, NACO or any of its Subsidiaries, or ABC or any of its Subsidiaries or Affiliated Entities, as the case may be, except in connection with (i) it shall keep and maintain at its own cost and expense true and complete records the issuance of shares of ABC Common Stock upon the Receivablesexercise of ABC Stock Options outstanding as of September 15, including1998 or (ii) the repurchase of shares of NACO Common Stock pursuant to stock repurchase agreements entered into with NACO prior to September 15, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith1998;
(b) issue, deliver, pledge or sell shares of capital stock or any securities convertible into or exchangeable or exercisable for, or any rights, warrants or options to acquire, any such shares, except for (i) the issuance of ABC Common Stock upon the exercise of ABC Stock Options outstanding as of September 15, 1998 or (ii) if requested by Collateral Agent while an Event the issuance of Default is continuingNACO Common Stock upon the exercise of NACO Rights outstanding as of September 15, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein1998;
(c) amend any material term of any outstanding security issued by NACO or ABC or any of their Subsidiaries or by any of ABC's Affiliated Entities or, solely with respect to ABC, take any action that would cause the ABC Common Stock not to remain publicly traded and listed on the Nasdaq NMS;
(d) except in the ordinary course of business, (i) incur any indebtedness for borrowed money, (ii) issue any debt securities, or (iii) except assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person other than NACO or any of its Subsidiaries or ABC or any of its Subsidiaries;
(e) create or assume any Lien on any of its assets, other than Permitted Liens or Liens which, in the aggregate, do not have and could not reasonably be expected to have a Material Adverse Effect;
(f) change any method of accounting or accounting practice, it shall perform all except for any such change required by reason of its obligations a change in GAAP;
(g) except as set forth in Section 5.1(g) of the Disclosure Schedule, and with respect to the Receivables;
clause (iv) it shall not amendbelow except as may be required to facilitate or obtain a determination letter from the IRS that a plan is "qualified" within the meaning of Code Section 401(a), modify(i) grant any severance or termination pay to any directors, terminate officers or waive employees (current, former or retired), (ii) enter into any provision of employment, deferred compensation or other similar agreement (or any Receivable in amendment to any manner which could reasonably be expected such existing agreement) with any directors or executive, officers or employees, (iii) increase the benefits payable under any existing severance or termination pay policies or employment agreements or (iv) increase the compensation, bonus or other benefits payable to have a Material Adverse Effect. Other any directors, officers or employees other than normal increases in the ordinary course of business as generally conducted by it on and prior to consistent with past practice that, in the date hereofaggregate, and except as otherwise provided do not result in subsection a material increase in benefits or compensation expense;
(vh) below, while an Event of Default is continuing, such Grantor shall not consummate (w) grant or enter into any extension agreement or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding agreement in principle with respect to or take any Receivable for less steps to facilitate) any merger, business combination, sale of stock or sale of material assets or any acquisition of stock or assets or operations of another entity, or, other than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with past practice, write off as uncollectible any notes or accounts receivable or write down the preceding sentence, value of any payments inventory; (i) dispose of Receivables received by such Grantor shall be forthwith (and or permit to lapse any rights in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor NACO Intellectual Property or ABC Intellectual Property or disclose to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation Person not an employee or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment otherwise dispose of any Receivabletrade secret, process or release wholly know-how not heretofore a matter of public knowledge, except pursuant to judicial order or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.process;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
, except as otherwise provided in this subsection (i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided hereinb), as well as the Receivables Records with an appropriate reference such Grantor shall continue to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than collect in the ordinary course of business as generally conducted by it on and prior to the date hereofconsistent with past practice, and except as otherwise provided in subsection (v) belowat its own expense, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableObligation. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following Following the occurrence of and during the continuation of an Event of Default, the Collateral Agent may: shall have the right at any time, upon concurrent written notice to each Grantor of its intention to do so, (xi) direct to notify, and/or require such Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (ii) to direct, and/or cause such Grantor to direct, such Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (ziii) enforce, upon such concurrent notification and at the expense of such Grantor, to enforce collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If After receipt by any Grantor of the written notice from the Collateral Agent notifies any Grantor that it has elected referred to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent Agent, if requiredrequired by the Collateral Agent, in a collateral an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Enviva Partners, LP)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete in all material respects records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iviii) it shall not amend, modify, terminate or waive any provision of any Receivable other than in any manner which could reasonably be expected to have a Material Adverse Effectthe ordinary course of business. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not not, without the prior written consent of Collateral Agent acting on instruction of Required Lenders (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;
(viv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableordinary course of business. Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require (in each case, in writing) any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following and the occurrence and during the continuation of an Event of Default, Collateral Agent may: (xA) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; , (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; , and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor in writing that it has elected elected, upon the instruction of the Required Lenders, to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (Danimer Scientific, Inc.)
Covenants and Agreements. Each Grantor hereby So long as the Obligation or any part thereof remains unpaid, Assignor covenants and agrees to: (a) from time to time promptly execute and deliver to Lender all such other assignments, certificates, passbooks, supplemental writings, notices and financing statements and do all other acts or things as Lender reasonably may request in order to evidence and perfect more fully the security interest herein created, (b) avoid making any statement or otherwise giving any information to third parties that would lead them to believe that Assignor has free access to the funds in the account or that this Assignment is not in existence and in full force and effect, (c) promptly furnish Lender with any information or writings that Lender reasonably may request concerning the Account, (d) promptly notify Lender of any change in any fact or circumstances warranted or represented by Assignor herein or in any other writing furnished by Assignor to Lender in connection with the Account or the Obligation, (e) promptly notify Lender of any claim, action or proceeding affecting title to the Account, or any part thereof, or the security interest granted in the Account hereby, and, at the request of Lender, appear in and defend any such action or proceeding, and (f) pay to Lender the amount of any court costs and reasonable attorneys' fees assessed by a court and incurred by Lender following default hereunder. Assignor covenants and agrees that:
, without the prior consent of Lender, Assignor will not: (ig) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all create any other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
in, mortgage, or otherwise encumber or assign the Account or any part thereof, or permit the same to be or become subject to any lien, attachment, execution, sequestration, other legal or equitable process, or any encumbrance of any kind or character, except the lien herein created, or (iiih) except as could not reasonably make or allow to be expected to have a Material Adverse Effect, it shall perform all of its obligations made any withdrawals from the Account.Should any funds payable with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably Account be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted received by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuingAssignor, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.shall
Appears in 1 contract
Samples: Loan Agreement (Ultrak Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslymark xxxspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables except those subject to a reasonable contest. Notwithstanding the foregoing, such non-performance shall not continue past 90 days;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuingexists, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor "located" (as such term is used in Section 9-103 of the UCC) in a jurisdiction which is not a part of the United States (such Additional Grantor, a "Foreign Grantor") to notify, any Account Debtor of such Foreign Grantor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.occurrence
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor The Borrower hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records At the request of the ReceivablesLender, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it Borrower shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agentthe Lender, all Chattel Paper, Instruments and other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to Collateral Agent the Lender as provided herein), as well as the related Receivables Records Records, with an appropriate reference to the fact that Collateral Agent the Lender has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Lender’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by the Borrower to be prudent.
(viii) except Except as otherwise provided in this subsectionSection, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Lender may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, Collateral Agent the Lender shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any Grantor the Borrower to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of Collateral Agent's the Lender’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent the Lender may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor the Borrower thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Lender and (zB) enforce, at the cost and expense of such Grantorthe Borrower, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might the Borrower would be able to have done. If Collateral Agent the Lender notifies any Grantor the Borrower that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor the Borrower shall not be commingled with any of its other funds or property but shall be forthwith (held separate and in any event within two Business Days) deposited by such Grantor in the exact form receivedapart therefrom, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received held in trust for the benefit of Collateral Agent the Lender hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Lender in the same form as so received (with any necessary endorsement), and such Grantor the Borrower shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) During the continuance of an Event of Default, at the request of the Lender, it shall use commercially reasonable efforts direct each Account Debtor to keep in full force and effect any Supporting Obligation or Collateral Support relating to any make payment on each Receivable to an account designated by the extent advisable in its reasonable business judgmentLender.
Appears in 1 contract
Samples: Pledge and Security Agreement (Uranium Resources Inc /De/)
Covenants and Agreements. Each U.S. Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records At the reasonable request of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuingAgent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments (other than checks received in the ordinary course of business) and other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records Records, with an appropriate reference to the fact that the Collateral Agent has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Collateral Agent’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection and unless otherwise determined by such Grantor in accordance with its good faith business judgment, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables (other than Other Receivables) and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Collateral Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such U.S. Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (xi) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such U.S. Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; Agent and (zii) enforce, at the cost and expense of such U.S. Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such U.S. Grantor might would be able to have done. If the Collateral Agent notifies any such U.S. Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such U.S. Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement), and such U.S. Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of an Event of Default, at the request of the Collateral Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the extent advisable in its reasonable business judgmentConcentration Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral, includingexcept Permitted Liens, but not limited to, records of and it shall defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform not change its name, identity, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Agent in writing, at least thirty (30) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of its obligations with respect the Agent's security interest in the Collateral granted or intended to the Receivablesbe granted and agreed to hereby;
(iv) it shall not amendpay promptly when due all property and other taxes, modifyassessments and governmental charges or levies imposed upon, terminate or waive any provision of any Receivable and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on such Grantor's books in accordance with GAAP; PROVIDED, such Grantor shall in any manner which could reasonably be expected to have a Material Adverse Effect. Other event pay such taxes, assessments, charges, levies or claims not later than in the ordinary course of business as generally conducted by it on and five (5) days prior to the date hereofof any proposed sale under any judgment, and except as otherwise provided in subsection (v) below, while an Event writ or warrant of Default is continuing, attachment entered or filed against such Grantor shall not (w) grant or any extension or renewal of the time Collateral as a result of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect the failure to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonmake such payment;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to upon such Grantor under the Receivables and or any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Agent in writing of any event that may materially and adversely affect the value of the Collateral or any material portion thereof, the ability of such Grantor shall not adjust, settle or compromise the amount Agent to dispose of the Collateral or payment of any Receivable, or release wholly or partly any Account Debtor or obligor material portion thereof, or allow the rights and remedies of the Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany material portion thereof;
(vi) except as expressly permitted by the Credit Agreement, it shall not take or permit any action which could impair the Agent's rights in the Collateral;
(vii) except as expressly permitted by the Credit Agreement, it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral; and
(viviii) it shall use commercially reasonable efforts such Grantor will take, and will cause each of its Subsidiaries to keep in full force and effect take, all action or actions as may be necessary to prevent any Supporting Obligation or of the Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentfrom becoming fixtures.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants The Pledgors covenant and agrees thatagree that until the Termination Date:
(ia) it shall keep Except as permitted by and maintain at its own cost in accordance with Section 7(c) of this Agreement and expense true and complete records Section 6.12 of the ReceivablesCredit Agreement, including, but not limited to, records without the prior written consent of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event the Pledgors will not sell, assign, transfer, pledge, or otherwise encumber any of Default is continuing, it shall xxxx conspicuously, its rights in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference or to the fact that Collateral Agent has a security Pledged Collateral, or any unpaid dividends, interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations or other distributions or payments with respect to the ReceivablesPledged Collateral or xxxxx x Xxxx in the Pledged Collateral;
(ivb) it without the prior written consent of the Collateral Agent, the Pledgors shall not amend, modify, vote to enable or take any other action to: (i) amend or terminate or waive any provision of any Receivable Organizational Documents in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in way that materially and adversely changes the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal rights of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding Pledgors with respect to any Receivable for less than Pledged Collateral or adversely affects the total unpaid balance thereofvalidity, perfection or priority of the Collateral Agent’s security interest, (yii) releasepermit any Pledged Entity to issue any additional limited partnership interests, wholly membership interests or partiallyother equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any equity interest of any nature of such Pledged Entity, other than to an entity that is already a Pledgor hereunder and concurrently with the delivery of any Person liable for such additional pledged interests to the payment thereof, Collateral Agent as collateral hereunder or (ziii) allow permit any credit Pledged Entity to dispose of all or discount thereona material portion of its assets if such disposition would be in violation of the Credit Agreement;
(vc) except as otherwise provided the Pledgors shall comply in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor material respects with all of their obligations under the Receivables Organizational Documents and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each caseshall enforce all of its rights thereunder;
(d) the Pledgors will, at its own expense their expense, promptly execute, acknowledge and deliver all such instruments and take all such actions as the Collateral Agent from time to time may reasonably request in order to ensure to the Collateral Agent the benefits of the Liens in and to the Pledged Collateral intended to be created by this Agreement, including the filing of any necessary UCC financing statements, which may be filed by the Collateral Agent with or (to the extent advisable in its reasonable business judgmentpermitted by law) without the signature of the Pledgors, and will cooperate with the Collateral Agent, at the Pledgors’ expense, in obtaining all necessary approvals and making all necessary filings under federal, state, local or foreign law in connection with such collections Liens or any sale or transfer of the Pledged Collateral;
(e) the Pledgors have and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding will defend the foregoing, title to the Pledged Collateral and the Liens of the Collateral Agent in the Pledged Collateral against the claim of any Person and will maintain and preserve such Liens;
(f) all Pledged Equity Interests shall have be “certificated securities” within the right at any time while an Event meaning of Default is continuing Article 8; and
(g) each Pledgor hereby consents to notify, or require any Grantor to notify, any Account Debtor the grant by each other Pledgor of Collateral Agent's a security interest in the Receivables and any Supporting Obligation Pledged Equity Interests to the Collateral Agent and, in additionwithout limiting the foregoing, at consents to the transfer of any time following Pledged Equity Interest to the Collateral Agent or its designee upon the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner Default and to the same extent substitution of the Secured Party or its designee as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and a member in any event within two Business Days) deposited by such Grantor limited liability company or limited partner in any limited partnership, as the exact form receivedcase may be, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under with all the sole dominion rights and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentpowers related thereto.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true reasonably satisfactory and complete records of the Receivables, including, but not limited to, copies of all material documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by upon the reasonable request of the Collateral Agent while an Event of Default is continuingAgent, it shall promptly xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) except as otherwise permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while upon the occurrence and during the continuance of an Event of Default is continuingor permitted under the Credit Agreement, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an upon written notice (which, if no Event of Default is continuing shall have occurred and be continuing, shall be no less than 2 Business Days prior notice) to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected the right to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereondo so; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its material obligations with respect to the Receivables;
(iviii) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and other than as permitted by the Credit Agreement and except as otherwise provided in subsection (viv) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Trustee may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent Trustee shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral AgentTrustee's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent Trustee may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral AgentTrustee; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral AgentTrustee; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent Trustee notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent Trustee if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral AgentTrustee, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent Trustee hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viv) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Receivable.
(vi) Delivery and Control of Receivables. With respect to any Receivables in excess of $10,000 individually or $100,000 in the aggregate that is evidenced by, or constitutes, Chattel Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be delivered to the extent advisable Collateral Trustee (or its agent or designee) appropriately indorsed to the Collateral Trustee or indorsed in its reasonable business judgmentblank: (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein. With respect to any Receivables in excess of $10,000 individually or $100,000 in the aggregate which would constitute "electronic chattel paper" under Article 9 of the UCC, each Grantor shall take all steps necessary to give the Collateral Trustee control over such Receivables (within the meaning of Section 9-105 of the UCC): (i) with respect to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring rights therein. Any Receivable not otherwise required to be delivered or subjected to the control of the Collateral Trustee in accordance with this subsection (c) shall be delivered or subjected to such control upon request of the Collateral Trustee.
Appears in 1 contract
Samples: Pledge and Security Agreement (Belden & Blake Corp /Oh/)
Covenants and Agreements. Each Grantor hereby Prior to Closing, Seller covenants and agrees thatas follows:
(a) Seller shall give Purchaser and Purchaser’s agents, representatives, contractors and designees full access to the Property in order to make such inspections, surveys, test borings, soil analyses and other tests and surveys thereon as Purchaser, in its sole discretion, shall deem advisable. Seller shall furnish Purchaser such additional information concerning the ownership, management, operation and the condition of the Property as Purchaser may reasonably request. The cost and expenses of Purchaser’s investigation shall be borne solely by Purchaser. Purchaser shall indemnify and hold Seller harmless for any property damage or injury caused by Purchaser in connection with such inspections and tests, and this provision shall survive the termination or closing of this Contract;
(b) From and after the date hereof, Seller shall not (i) perform any grading or excavation, construction or removal of any improvement or make any other change or improvement upon or about the Property, (ii) create or incur, or suffer to exist, any mortgage, lien, pledge or other encumbrance in any way affecting the Property, other than the lien for taxes not yet due and payable and existing liens to be released at the Closing, (iii) commit any waste or nuisance upon the Property, or (iv) impose any easements, covenants, conditions or restrictions on the Property or institute or participate in any annexation, zoning, platting, dedication or other governmental action regarding the Property;
(c) Notwithstanding any other provisions contained herein, Seller, from the Purchase Price proceeds or otherwise, shall pay and discharge all liens against the Property other than the lien for current taxes which are not yet due and payable such that title to the Property will be conveyed to Purchaser free and clear of all liens other than the lien for current taxes which are not yet due and payable;
(d) Seller shall not, without the prior written consent of Purchaser, enter into, transfer, encumber, amend, extend, modify or in any way alter any lease, contract or agreement which affects the Property;
(e) Seller will cause the Property to be maintained and operated in a good manner in accordance with the manner as is being conducted at the time of execution hereof and in compliance with all applicable laws, rules and regulations, restrictive covenants and zoning ordinances. Seller will not use or occupy, or allow the use or occupancy of, the Property in any manner which violates any applicable laws, rules and regulations, restrictive covenants and zoning ordinances or which constitutes waste or a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. Seller will not permit the introduction or storage of any pollutants on the Land. Seller will not do or suffer to be done any act whereby the value of any part of the Property may be materially lessened;
(f) Seller will advise Purchaser promptly of any change in any applicable laws, regulations, restrictions, rulings, or orders which might affect the value or use of the Property by Purchaser of which Seller obtains knowledge. Seller will also advise Purchaser promptly of any litigation, arbitration or administrative hearing concerning or affecting the Property of which Seller obtains knowledge;
(g) Seller will not take any action or omit to take any action, which action or omission would have the effect of violating any of the representations and warranties of Seller contained in the Contract;
(h) Seller shall promptly furnish Purchaser with any and all notices concerning the Property that Seller receives from any and all appraisal districts, taxing authorities or any other governmental entities or of any litigation, arbitration or administrative hearing concerning the Property and any other material changes prior to Closing in any of the facts reflected in any statements, certificates, schedules, or other documents or any representation or warranties made or furnished by Seller in connection with this transaction. This covenant shall survive the Closing;
(i) it In the event the Property is subject to any deed restrictions or restrictive covenants of any kind (“CCRs”), Seller shall keep diligently cooperate with and maintain at its own cost and expense true and complete records of assist Purchaser in obtaining from all appropriate parties to the ReceivablesCCRs, includingincluding any owner association, but not limited toany consents, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if approvals and/or estoppels requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonPurchaser; and
(vij) it Seller shall use reasonably cooperate with Purchaser in connection with Purchaser’s efforts to obtain construction financing and satisfy any lender requirements thereto, including but not limited to the subordination of the Note, Deed of Trust, and Vendor’s Lien pursuant to commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentterms.
Appears in 1 contract
Samples: Contract of Sale
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records records, in all material respects, of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall use commercially reasonable efforts to xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all tangible Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided set forth herein)) have an aggregate face value in excess of $100,000, as well as the GS / Landec – Pledge and Security Agreement Receivables Records (if requested by Collateral Agent) with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, following the occurrence and during the continuation of an Event of Default, Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while following the occurrence and during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor into an account designated by Collateral Agent in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and;
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Receivable; and GS / Landec – Pledge and Security Agreement
(vii) in respect of any Receivables having an aggregate face value of $100,000, the Account Debtor of which is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign to the extent advisable in its reasonable business judgmentsuch Receivables are subject to an Assignment of Claims Act Statute, the Grantors shall give Collateral Agent written notice thereof and at the request of the Collateral Agent at any time following the occurrence and during the continuance of an Event of Default, the applicable Grantor shall promptly execute and deliver any documentation and take any other action reasonably requested by Collateral Agent to comply with the applicable Assignment of Claims Act Statutes.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithits Receivables consistent with its past practice;
(ii) if requested by at the request of the Collateral Agent while after the occurrence and during the continuation of an Event of Default is continuingDefault, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all of its Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided hereinherein and Instruments deposited in a Deposit Account for collection in the ordinary course of business), as well as the its Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables in accordance with its normal business practice;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivableof its Receivables, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable of its Receivables for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect in accordance with its past business practice, all amounts due or to become due to such Grantor under the its Receivables and any Supporting Obligation and diligently exercise in accordance with its past business practice each material right it may have under any Receivable of its Receivable, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.Collateral
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations and termination of all Commitments:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the ReceivablesReceivables as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar business, and in any event in conformity with GAAP, including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on the such Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse EffectEffect or result in a Material Impairment. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofit, and except as otherwise provided in subsection (v) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Samples: Pledge and Security Agreement (Berry Plastics Corp)
Covenants and Agreements. Each Grantor hereby In addition to any and all other covenants and agreements by Pledgor under this Pledge, Pledgor further covenants and agrees until the Obligations have been paid in full that:
(i) it the Interest shall keep and maintain at its own cost and expense true and complete records continue to constitute not less than 66% of the Receivables, including, but not limited to, records of all payments received total beneficial interests in the Company and all credits granted on the Receivables, all merchandise returned Stock Certificates shall be in certificated form; and all other dealings therewith;
(ii) if requested by Pledgor shall defend the Collateral against the claims and demands of all persons whomsoever and shall defend Lender's security interest therein against all material claims and demands of any other person or party at any time claiming the same or any interest therein adverse to Lender, subject to the rights, title and interest of the Administrative Agent while an Event pursuant to the Security Agreement and the First Equitable Mortgage.
(b) Pledgor shall not directly or indirectly further assign, pledge, hypothecate, transfer, exchange, grant any option or security interest in and with respect to, or otherwise dispose of Default is continuingor encumber, it shall xxxx conspicuously, in form and manner reasonably satisfactory the Collateral or any beneficial or other interest therein except (i) to Collateral the Administrative Agent, all Chattel Paper, Instruments subject to and in accordance with the Security Agreement and other evidence of Receivables Permitted Encumbrances encumbering the Collateral or (other than ii) pursuant to a Permitted Disposition.
(c) Pledgor shall from time to time pay and discharge, all taxes, assessments and charges imposed on the Collateral by any delivered to Collateral Agent as provided herein)Governmental Authority, as well as the Receivables Records with an appropriate reference except to the fact that Collateral Agent has a security interest therein;
(iii) except as extent failure to do so could not reasonably be expected to have a Material Adverse Effectmaterial adverse affect on the Collateral or Lender's security interest therein; Pledgor may contest any such taxes, it assessments or governmental charges in good faith by appropriate proceeding where the failure to do so could not reasonably be expected to materially and adversely affect the Collateral or Lender's security interest therein.
(d) Pledgor shall perform all give Lender notice promptly after any officer of Pledgor with executive responsibilities with respect to Pledgor obtains actual knowledge thereof, (i) of the occurrence of any breach by Pledgor of its obligations with respect under this Pledge and/or the Second Equitable Mortgage and (ii) of any action or proceeding to which Pledgor is a party, or affecting Pledgor, except to the Receivables;
(iv) it shall extent failure to do so could not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in material adverse affect on Pledgor or the ordinary course Collateral or Lender's security interest therein.
(e) Pledgor shall deliver to Lender after the occurrence and during the continuance of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an any Event of Default is continuingor as otherwise required by Paragraph 11 hereof any and all Distributions payable or paid to Lender pursuant to the terms of this Pledge and shall deliver to Lender all principal, interest and other sums due or paid under any loans by Pledgor to Company. Pledgor shall promptly deliver to Lender all notes or other evidence of indebtedness with respect to such Grantor loans.
(f) Pledgor shall not permit any Voluntary Bankruptcy Event to occur without the express prior written consent of Lender.
(wg) grant Pledgor shall not permit the liquidation, dissolution, winding up or discontinuation, in whole or in part, of Pledgor or Company without the express prior written consent of Lender.
(h) Pledgor agrees, notwithstanding any extension provision in its or renewal the Company's organizational documents or in the Shareholders Agreement, (i) not to take any action (or fail to take an action which failure would have such effect) to terminate, dilute, impair or otherwise adversely affect in any material respect Lender's legal rights, remedies or interests under this Pledge or the Second Equitable Mortgage (provided that the Pledgor shall not be in default of the time of payment of any Receivable, such obligation if (x) compromise the Pledgor or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral SupportCompany, in each case, at its own expense and to the extent advisable in exercising its reasonable business judgment, acts in good faith with due regard to the terms hereof and the interests of Lender hereunder or (y) if Pledgor or the Company enters into and consummates a transaction permitted under Section 8(b) hereof) and shall cause the Company to amend (in connection with such collections form and exercise, such Grantor shall take substance reasonably satisfactory to Lender) its organizational documents to similarly so provide and to preclude any such action as or inaction having such Grantor may deem effect, and to obtain all necessary or advisable. Notwithstanding consents and perform such other actions which are a prerequisite to such amendments and (ii) to otherwise promptly comply with Lender's reasonable requests to ensure that the foregoing, Collateral Agent Company is and remains a special purpose entity (the purpose and activities of which shall have be limited to owning the right stock of PowerTel).
(i) Pledgor shall provide twenty (20) days prior notice to Lender if at any time while an Event after the date hereof it intends (i) be incorporated in any jurisdiction of Default is continuing to notifyAustralia, (ii) carry on business in Australia (as determined under Australian law) or require any Grantor to notify(iii) for Australian tax purposes, any Account Debtor become a resident of Collateral Agent's security interest Australia or a non-resident of Australia carrying on business at or through a permanent establishment in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: Australia.
(xj) direct the Account Debtors under any Receivables to make payment The acquisition of all amounts due or to become due to such Grantor thereunder directly to any portion the Collateral Agent; (y) notify, or by the Pledgor does not require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and notification to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect Treasurer of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for Commonwealth of Australia under section 26 of the benefit of Collateral Agent hereunder Foreign Acquisitions and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentTakeover Act 1975.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants All representations and agrees that:
(i) it warranties made by the Target contained in this Agreement shall keep and maintain at its own cost and expense true and complete records survive the Closing Date for the duration of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested Claims Period. Any claim made by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations Buyer with respect to such representations and warranties must be initiated by giving notice during the Receivables;
Claims Period. All of said representations and warranties shall in no respect be limited or diminished by any past or future inspection, investigation, examination or possession (ivwhether before or after the Closing) it shall not amendon the part of Buyer, modifyor its Representatives; provided, terminate or waive any provision however, that, subject to Section 6.5, to the extent that as a result of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and such inspection, investigation, examination or possession prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant Closing Buyer has actual knowledge that any extension representation or renewal warranty of the time of payment of Target is untrue or that any Receivablecovenant or agreement made by the Target, (x) compromise any Subsidiary or settle any disputeShareholder contained in Articles 2, claim or legal proceeding 6 and 10 have not been performed, then neither the Target nor any Shareholder shall have any liability with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly such untrue representation or partially, any Person liable for the payment thereof, warranty or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableunperformed covenant. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event For purposes of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, Buyer shall not be deemed to have knowledge of any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor information or documents not set forth on or listed in the exact form receivedSchedules to Article 4 of this Agreement, duly indorsed by such Grantor to Collateral Agent if requiredexcept that, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable not listed on such Schedules, Buyer shall be deemed to have knowledge of all matters contained in its reasonable business judgmentthe documents listed in that certain letter dated the date of this Agreement from Barnxx & Xhorxxxxx xx IDEX and attached hereto as Schedule 9.1(a) to the extent such documents have been provided to Buyer or Buyer's Representatives. All covenants and agreements made by the Target, any Subsidiary or any Shareholder contained in Articles 2, 6 and 10 of this Agreement which are required to be performed prior to the Closing Date shall survive the Closing for the duration of the Claims Period, and any claim made by Buyer with respect thereto must be initiated by written notice during the Claims Period. All covenants and agreements made by the Target, any Subsidiary or any Shareholder contained in Articles 2, 9 and 10 of this Agreement which are required to be performed on or after the Closing Date (including, without limitation, the indemnification obligations set forth in this Section) shall survive the Closing Date until fully performed or discharged.
Appears in 1 contract
Samples: Merger Agreement (Idex Corp /De/)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) it shall keep and maintain at its own cost and expense true and complete records the request of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while after the occurrence and during the continuation of an Event of Default is continuingDefault, it shall xxxx conspicuouslymark consxxxxously, in form and manner reasonably satisfactory to the Collateral Agent, all of its Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided hereinherein and Instruments deposited in a Deposit Account for collection in the ordinary course of business), as well as the its Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iiiii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereofit, and except as otherwise provided in subsection (viii) belowbelow or the Credit Agreement, while following the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivableof its Receivables, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable of its Receivables for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsectionsubsection or the Credit Agreement, each Grantor shall continue to collect in accordance with its past business practice, all amounts due or to become due to such Grantor under the its Receivables and any Supporting Obligation and diligently exercise in accordance with its past business practice each material right it may have under any Receivable of its Receivables, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while following the occurrence and during the continuation of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining 103522660_5 a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account maintained under Deposit Account designated by the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) subject to any underlying contractual requirements or provisions, it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in of its reasonable business judgmentmaterial Receivables.
Appears in 1 contract
Samples: Pledge and Security Agreement (Covanta Holding Corp)
Covenants and Agreements. Each Grantor Grantor, other than BMCA in respect of property sold to BMCA Receivables under the Receivables Program, hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslymark xxxspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable other than in any manner which could reasonably be expected to have a Material Adverse Effectthe ordinary course of its business. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event during the continuance of Default is continuinga Default, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of a Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.thereunder
Appears in 1 contract
Samples: Security Agreement (Building Materials Investment Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of except for the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested security interest created by Collateral Agent while an Event of Default is continuingthis Agreement, it shall xxxx conspicuouslynot create or suffer to exist any Lien upon or with respect to any of the Collateral, in form except Permitted Liens, and manner reasonably satisfactory to such Grantor shall defend the Collateral Agent, against all Chattel Paper, Instruments and other evidence of Receivables (other than Persons at any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security time claiming any interest therein;
(iiiii) except as could not reasonably be expected to have result, either individually or in the aggregate, in a Material Adverse Effect, it shall perform not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), chief executive office, or jurisdiction of organization unless it shall, at least (15) days prior to such change, (a) notify Agent in writing, by executing and delivering to Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, identifying such new name, identity, corporate structure, chief executive office, jurisdiction of its obligations with respect organization and providing such other information in connection therewith as Agent may reasonably request and (b) take all actions necessary to maintain the Receivablescontinuous validity, perfection and the same or better priority of Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) except to the extent otherwise expressly permitted by the Credit Agreement, it shall not amendpay promptly when due all property and other taxes, modifyassessments and governmental charges or levies imposed upon, terminate or waive any provision of any Receivable and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being Properly Contested; provided, such Grantor shall in any manner which could reasonably be expected to have a Material Adverse Effect. Other event pay such taxes, assessments, charges, levies or claims not later than in the ordinary course of business as generally conducted by it on and five (5) days prior to the date hereofof any proposed sale under any judgment, and except as otherwise provided in subsection (v) below, while an Event writ or warrant of Default is continuing, attachment entered or filed against such Grantor shall not (w) grant or any extension or renewal of the time Collateral as a result of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect the failure to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonmake such payment;
(v) except as otherwise provided in this subsection, each Grantor it shall continue to collect all amounts due not take or to become due to such Grantor under the Receivables and permit any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral which could materially impair Agent's security interest ’s rights in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCollateral; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable to except as otherwise permitted under the extent advisable in its reasonable business judgmentCredit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Euramax International, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true accurate and complete records of the ReceivablesReceivables as are customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithin any event in conformity with GAAP;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to each of the Revolving Collateral Agent and the Term Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of evidencing Receivables (other than any delivered to the Revolving Collateral Agent as provided herein), as well as the Receivables Records relating thereto with an appropriate reference to the fact that each of the Revolving Collateral Agent and the Term Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than in the ordinary course of business, it shall not amend, modify, terminate or waive any provision of any Receivable in excess of $250,000 individually for any invoice or $1,000,000 in the aggregate for any account ("MATERIAL RECEIVABLE") in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofbusiness, and except as otherwise provided in subsection (v) below, while after the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Material Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall may continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently may exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in additionexpense; provided however, at any time following the occurrence and during the continuation of an Event of Default, the Term Collateral Agent may, subject to the terms of the Intercreditor Agreement: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Term Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Term Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Term Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two one (1) Business DaysDay) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Term Collateral Agent if required, in a collateral account maintained under Securities Account or Deposit Account subject to a control agreement in the sole dominion form of Exhibit C or Exhibit D-1, or such other control agreement in form and control of substance reasonably satisfactory to the Term Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Term Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andprovided, further, that, prior to the Discharge of Revolving Obligations, and except as otherwise may be set forth in the Intercreditor Agreement, the Term Collateral Agent shall not have the right to exercise its rights under this subsection unless the Revolving Security Agent shall have first exercised its rights under the related provision in the Revolving Security Agreement;
(vi) except as it shall determine otherwise in the ordinary course of business, it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable; and
(vii) it shall notify the Term Collateral Agent in writing promptly and in any event within ten (10) days after receipt of any Material Receivable to in respect of which the extent advisable in its reasonable business judgmentAccount Debtor is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with the Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event it shall promptly transfer or cause to be transferred all funds arising from the collection of Default is continuingall Receivables (1) to a Collection Account listed on Schedule 4.4(A) hereto (as such schedule may be amended or supplemented from time to time) and (2) in any event, no later than 2 Business Days after transfer to the Collection Account in clause (1) above, to a Concentration Account listed on Schedule 4.4(A) hereto (as such schedule may be amended or supplemented from time to time).
(iii) it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agentthe Secured Party, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent the Secured Party as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent the Secured Party has a security interest therein;
(iiiiv) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(ivv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(vvi) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Secured Party may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent the Secured Party shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify (and if so, such Grantor shall so notify), any Account Debtor of Collateral Agentthe Secured Party's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent the Secured Party may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.Secured Party;
Appears in 1 contract
Samples: Pledge and Security Agreement (Atlantic Coast Entertainment Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and substantially complete records of any material portion of the ReceivablesAccounts included in the Collateral, including, but not limited to, the originals, if applicable, of all documentation with respect to all Accounts and records of all payments received and all credits granted on any material portion of the ReceivablesAccounts, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslyperform in all material respects all of its material obligations with respect to its Accounts, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinextent deemed prudent business conduct as determined by such Grantor in its reasonable business discretion;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereofit, and except as otherwise provided in subsection (v) below, while following an Event of Default that has occurred and is continuingcontinuing and after written notice from Administrative Agent or if Administrative Agent has otherwise exercised any rights or remedies pursuant to Section 4.3(b)(v) below or Section 7 of this Agreement, such Grantor shall not (w) grant any extension or renewal of the time of payment of any ReceivableAccount with a value in excess of $25,000, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable Account with a value in excess of $25,000 for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonthereon (other than in the ordinary course), in each case, without the consent of the Administrative Agent;
(viv) except as otherwise provided in this subsection, each Grantor shall continue to collect all material amounts due or to become due to such Grantor under the Receivables its Accounts and any Supporting Obligation in a manner consistent with the ordinary course of business as generally conducted by it, and diligently exercise exercise, in such Grantor’s reasonable business judgment, each material right it may have under any Receivable Account, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, after the occurrence and during the continuance of an Event of Default, the Administrative Agent may deem reasonably necessary or advisable. Notwithstanding the foregoing, Collateral after the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral the Administrative Agent's ’s security interest in the Receivables and any Supporting Obligation Grantor’s Accounts and, in addition, at any time following after the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may, following written notice to Grantors,: (x1) direct the Account Debtors under any Receivables Account to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral the Administrative Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables Account have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral the Administrative Agent; and (z3) enforce, at the reasonable expense of such Grantor, collection of any such Receivables Account and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral the Administrative Agent notifies any Grantor that it has elected to collect the Receivables any Account in accordance with the preceding sentence, any payments of Receivables Accounts received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral the Administrative Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of Collateral the Administrative Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivablessuch Accounts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral the Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any ReceivableAccount, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonthereon (other than in the ordinary course); and
(viv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Account, to the extent advisable deemed prudent business conduct as determined by such Grantor in its reasonable business judgment.
Appears in 1 contract
Samples: Pledge and Security Agreement (Better Choice Co Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it It shall keep mark in its books and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslyrecords, in form and manner reasonably satisfactory to Collateral the Administrative Agent, all Chattel Paper, Instruments and other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to Collateral the Administrative Agent as provided herein), as well as the related Receivables Records Records, with an appropriate reference to the fact that Collateral the Administrative Agent has a security interest therein;.
(iiiii) except It will not, without the Administrative Agent’s prior written consent (which, so long as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on no Default has occurred and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor consent shall not (w) be unreasonably withheld), grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Administrative Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, Collateral the Administrative Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of Collateral the Administrative Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Administrative Agent and (zB) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done. If Collateral the Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of Collateral the Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to the extent advisable in its reasonable business judgmenta Controlled Account.
Appears in 1 contract
Samples: Pledge and Security Agreement
Covenants and Agreements. Each Grantor hereby The Pledgor covenants and agrees thatthat on and after the date hereof until the Payment in full of the Secured Obligations and the termination and discharge of the Indenture, unless the Collateral Agent shall otherwise consent in writing:
(ia) it shall keep At any time and maintain at its own cost and expense true and complete records from time to time, upon the reasonable request of the ReceivablesCollateral Agent, and at the sole expense of the Pledgor, the Pledgor shall promptly do, file, record, execute and deliver any and all such further notices, instruments and documents and will take such further action as may be reasonably deemed necessary or desirable in the judgment of the Collateral Agent and its counsel to obtain, protect and perfect the security interests granted hereby and enforce and give effect to the rights, remedies and powers hereunder, including, but not limited towithout limitation, records and the recording or filing of all payments received instruments and all credits documents reasonably necessary to perfect and protect the perfection of the security interests granted on hereby under Articles 8 or 9 of the ReceivablesUniform Commercial Code in effect in any applicable jurisdiction. In connection therewith, the Collateral Agent is hereby irrevocably authorized and empowered as the Pledgor's attorney-in-fact, solely to make, at the Collateral Agent's option, all merchandise returned filings and to give all other dealings therewith;
(ii) if requested by notices as it shall reasonably deem necessary with respect to any of the Collateral, all of which may be done with or without the signature of the Pledgor. The Pledgor agrees that the foregoing power constitutes a power coupled with an interest which shall survive until the Payment in full of all of the Secured Obligations. The Pledgor agrees to reimburse the Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form on demand for any actual and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments reasonable expenses (including reasonable attorneys' fees and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations expenses with respect to the Receivables;
(ivCollateral Agent, including reasonable allocated costs and expenses of in-house counsel and legal staff) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in incurred by the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and Agent in connection with such collections and exercisematters and, until such reimbursement, such Grantor expenses shall take such action as such Grantor may deem necessary or advisable. Notwithstanding be a part of the foregoing, Secured Obligations.
(b) The Pledgor shall defend its ownership interest in and to the Collateral Agent shall have and the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in and to the Receivables Collateral against all claims and any Supporting Obligation and, in addition, demands of all Persons at any time following claiming the occurrence same or any interest therein adverse to the interests of the Collateral Agent.
(c) The Pledgor shall, at all times, maintain or cause to be maintained accurate books and during records with respect to the continuation of an Event of DefaultCollateral, and shall furnish to the Collateral Agent may: (x) direct such information concerning such Collateral as the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items Agent may from time to time sent to or deposited in such lockbox or other arrangement directly to reasonably request. The Collateral Agent; Agent and (z) enforceits designees are hereby given the right, at the expense Pledgor's expense, to inspect and copy, following prior notice to the Pledgor and during regular business hours, or the Pledgor shall furnish the Collateral Agent with copies of, all records and documents reasonably required by the Collateral Agent relating to the Collateral.
(d) The Pledgor shall not further hypothecate, assign, pledge, encumber, transfer, sell or otherwise dispose of, or grant any option with respect to, or create or suffer to exist a security interest in, or a Lien on, the Collateral or any portion thereof, except for the pledge, assignment and security interest created by this Agreement in favor of such Grantor, collection the Collateral Agent and except as contemplated by Article 12 of the Indenture. The inclusion of "Proceeds" of the Collateral under the security interest granted herein shall not be deemed a consent by the Collateral Agent to any sale or other disposition of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent Collateral except as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentexpressly permitted herein.
Appears in 1 contract
Covenants and Agreements. Each Grantor Pledgor hereby covenants and agrees that:
(i) except for the security interests (i) created by or in connection with this Agreement and (ii) Permitted Liens, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the Receivables, including, but not limited to, records of Collateral and it shall defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by it shall not produce, use or permit any Collateral Agent while an Event to be used unlawfully or in violation of Default any provision of this Agreement or any applicable Law or any policy of insurance covering the Collateral;
(iii) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims against, the Collateral, except to the extent the validity thereof is continuingbeing contested in good faith in accordance with the rights set forth below. In the event the Parent chooses to contest the validity of any taxes, assessments, governmental charges, levies imposed upon, and any claim against it, it may only do so if, at the time of commencement of any such action or proceeding and during the pendency thereof, adequate reserves with respect thereto, shall have been deposited with the applicable court or other relevant authority or with the Bank or otherwise made in accordance with generally accepted accounting principles;
(iv) upon any of such Pledgor’s officers obtaining knowledge thereof, it shall xxxx conspicuouslypromptly notify the Bank in writing of any levy of any legal process against the Collateral pledged by such Pledgor or any portion thereof;
(v) it shall not take or permit any action that could reasonably be expected to materially impair the Bank’s rights in the Collateral;
(vi) except for Permitted Liens, in form and manner reasonably satisfactory it shall not directly or through any other Person sell, assign, pledge or otherwise transfer or seek to transfer (by operation of law or otherwise) any Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than or any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iiivii) except as could not reasonably be expected to have a Material Adverse Effectwithout the prior written consent of the Bank, it shall perform all not become bound under Section 9-203 of its obligations the UCC by any other security agreement with any other Person with respect to the Receivables;Collateral; and
(ivviii) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in additionshall, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox time, give, execute and/or deliver any notice, certificates or other arrangement directly Instruments evidencing any Collateral, powers of assignment, document, agreement or other papers that the Bank shall reasonably deem necessary or advisable to Collateral Agent; create, preserve, perfect or validate the security interest created hereby or to enable the Bank to exercise and (z) enforce, at the expense of enforce its rights hereunder with respect to such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentsecurity interest.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by at the request of the Collateral Agent while an Event (acting upon a Direction of Default is continuing, the Requisite Lenders in their reasonable discretion) it shall xxxx mark conspicuously, in form and manner reasonably satisfactory to the Collateral AgentAgent (acting upon a Direction of the Requisite Lenders in their reasonable discretion), all Chattel Paper, Paper and Instruments and other evidence with a value in excess of $1,000,000 individually or $2,000,000 in the aggregate together with all such Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables[reserved];
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while (a) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect on the value of the Receivables of the Credit Parties, taken as a whole, as Collateral and (b) upon the occurrence and during the continuance of an Event of Default is continuingDefault, at the Collateral Agent’s request, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;thereon (except, in each case, in respect of returns and/or damaged or defective product); and
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent (acting upon a Direction of the Requisite Lenders) may deem reasonably necessary or advisableadvisable and consistent with the ordinary course of Xxxxxxx’s business. Notwithstanding the foregoingforegoing but subject in all respects to all Requirements of Law, the Collateral Agent shall have the right at any time while following the occurrence and during the continuation of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two three (3) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent (subject to control of the First Lien Collateral Agent), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; provided however, that until the Discharge of First Lien Obligations has occurred, the requirements for delivery under this paragraph shall be deemed to have been satisfied by delivery of such Collateral to the First Lien Collateral Agent; and
(vi) it shall use commercially its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each U.S. Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records At the reasonable request of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuingAgent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments (other than checks received in the ordinary course of business) and other evidence of any Receivables owned or held by it or on its behalf (other than any delivered to the Collateral Agent as provided hereinherein and other than purchase orders sent to customers), as well as the related Receivables Records Records, with an appropriate reference to the fact that the Collateral Agent has a security interest therein;.
(iiiii) except as could not reasonably be expected to have a Material Adverse EffectIt will not, it shall perform all of its obligations with respect to without the Receivables;
Collateral Agent’s prior written consent (iv) it which consent shall not amendbe unreasonably withheld), modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection and unless otherwise determined by such Grantor in accordance with its good faith business judgment, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables (other than Other Receivables) and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Collateral Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such U.S. Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (xi) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such U.S. Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; Agent and (zii) enforce, at the cost and expense of such U.S. Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such U.S. Grantor might would be able to have done. If the Collateral Agent notifies any such U.S. Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such U.S. Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Collateral Agent in the same form as so received (with any necessary indorsement), and such U.S. Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of an Event of Default, at the request of the Collateral Agent, it shall direct each Account Debtor to make payment on each Receivable to a Blocked Account or the extent advisable in its reasonable business judgmentConcentration Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records records, in all material respects, of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx use commercially reasonable efforts to mark conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all tangible Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided set forth herein)) have an aggregate face value in excess of $100,000, as well as the Receivables Records (if requested by Collateral Agent) with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, following the occurrence and during the continuation of an Event of Default, Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while following the occurrence and during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor into an account designated by Collateral Agent in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and;
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Receivable; and
(vii) in respect of any Receivables having an aggregate face value of $100,000, the Account Debtor of which is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign to the extent advisable in its reasonable business judgmentsuch Receivables are subject to an Assignment of Claims Act Statute, the Grantors shall give Collateral Agent written notice thereof and at the request of the Collateral Agent at any time following the occurrence and during the continuance of an Event of Default, the applicable Grantor shall promptly execute and deliver any documentation and take any other action reasonably requested by Collateral Agent to comply with the applicable Assignment of Claims Act Statutes.
Appears in 1 contract
Samples: Pledge and Security Agreement (Lifecore Biomedical, Inc. \De\)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Obligations (other than unmatured contingent obligations), the cancellation or termination of all Commitments, the expiration or termination of all Hedge Agreements and the cancellation or expiration of all outstanding Letters of Credit:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithReceivables in accordance with its ordinary commercial practice;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially its reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true reasonably satisfactory and complete records of the Receivables, including, but not limited to, copies of all material documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by upon the reasonable request of the Collateral Agent while an Event of Default is continuingAgent, it shall promptly xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) except as otherwise permitted by the Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while upon the occurrence and during the continuance of an Event of Default is continuingor permitted under the Credit Agreement, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisablenecessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an upon written notice (which, if no Event of Default is continuing shall have occurred and be continuing, shall be no less than two Business Days’ prior written notice) to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z2) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected the right to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereondo so; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any material Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the ReceivablesReceivables which are complete in all material respects, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effectmaterially reduce the value of such Receivable as Collateral, except as otherwise permitted by the Credit Agreement. Other than in the ordinary course of business as generally conducted by it on from time to time, upon the occurrence and prior to during the date hereof, and except as otherwise provided in subsection (v) below, while continuance of an Event of Default is continuingDefault, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;, in each case, except to the extent expressly permitted by the Credit Agreement; and
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableexpense. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while upon the occurrence and during the continuance of an Event of Default is continuing at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (xA) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and and, during the continuance of any such Event of Default, such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 1 contract
Samples: Pledge and Security Agreement (AvidXchange Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:agrees
(i) the Liens, security interests and claims of all other holders of Liens, security interests or claims on, in, or against the Grantor (except to the extent expressly set forth in the Financing Orders), are subordinated and junior to the Liens and Security Interests granted hereunder and under the Financing Orders to the Grantee;
(ii) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the Receivables, Collateral and the Grantor shall defend the Collateral and the Grantee’s Liens on and Security Interests in the Collateral (including, but not limited to, records of the senior priority thereof) against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables Persons (other than the Grantee) at any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security time claiming any interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all not produce, use or permit any Collateral to be used unlawfully in any material respect or in violation of its obligations with any provision of this Agreement or in violation in any material respect to of any applicable statute, regulation or ordinance or any policy of insurance covering the ReceivablesCollateral;
(iv) it shall not amendeffect any change: (a) in the Grantor’s legal name, modify(b) in the location of the Grantor’s chief executive office, terminate (c) in the Grantor’s identity or waive or-ganizational structure, (d) in the Grantor’s Federal Taxpayer Identification Number or organizational identification number, if any, or (e) in the Grantor’s jurisdiction of incorporation (in each case, including by merging with or into any provision other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), unless such change is permitted under the DIP Credit Agreement and Financing Orders and until it shall have given the Grantee not less than thirty (30) days’ prior written notice (in the form of an Officers’ Certificate) of its intention so to do, clearly describing such change and providing such other information in connection therewith as the Grantee may reasonably request and it shall have taken all actions necessary or advisable, or as directed by the Grantee, to maintain the continuous validity, perfection and the same or better priority of the Security Interest of the Grantee in the Collateral, if applicable. The Grantor agrees, as soon as practicable, to provide the Grantee with certified Organizational Documents reflecting any of the changes described in the preceding sentence. The Grantor also agrees to (a) promptly notify the Grantee of any Receivable change in the location of any manner office in which it maintains books or records relating to Collateral owned by it or any office or facility at which Collateral is located (including the establishment of any such new office or facility) and (b) take all actions necessary or advisable, or as directed by the Grantee, as a result of any of the foregoing changes, to maintain the continuous validity, perfection and the same or better priority of the Grantee’s Security Interest in the Collateral intended to be granted and agreed to hereby;
(v) immediately upon the Grantor or any officer of the Grantor obtaining knowledge thereof, it shall promptly notify the Grantee in writing of any event, including, without limitation, the levy of any legal process against the Collateral or any material portion thereof, that could reasonably be expected to have a Material Adverse Effect. Other than in Effect on the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal value of the time of payment of Collateral or any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance material portion thereof, (y) release, wholly the ability of the Grantor or partially, the Grantee to dispose of the Collateral or any Person liable for the payment material portion thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables rights and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect remedies of the Receivables, any Supporting Obligation or Collateral Support shall be received Grantee in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andrelation thereto;
(vi) it shall use commercially reasonable efforts not take or permit any action (other than any action taken by, or at the direction of, the Grantee) which could reasonably be expected to keep in full force and effect any Supporting Obligation impair the Grantee’s rights in, or Collateral Support relating to any Receivable to materially diminish the extent advisable in its reasonable business judgmentvalue, of the Collateral.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables, except to the extent being contested in good faith, so long as adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefor;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while following an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and, acting in good faith and with prudent business judgment, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable its best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (Services International LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it It shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral the Administrative Agent, all Chattel Paper, Instruments and other evidence of any Receivables included in the Collateral owned or held by it or on its behalf (other than any delivered to Collateral the Administrative Agent as provided herein), as well as the related Receivables Records Records, with an appropriate reference to the fact that Collateral the Administrative Agent has a security interest therein;.
(iiiii) except It will not, without the Administrative Agent’s prior written consent (which, so long as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on no Default has occurred and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor consent shall not (w) be unreasonably withheld, conditioned or delayed), grant any extension or renewal of the time of payment of any such Receivable, (x) compromise compromise, compound or settle any dispute, claim or legal proceeding with respect to any Receivable the same for less than the total unpaid balance full amount thereof, (y) release, wholly or partiallypartly, any Person liable for the payment thereofSupporting Obligation or Collateral Support relating thereto, or (z) allow any credit or discount whatsoever thereon;, other than extensions, credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(viii) except Except as otherwise provided in this subsectionSection, each Grantor it shall continue to collect all amounts due or to become due to it under all such Grantor under the Receivables and any Supporting Obligation Obligations or Collateral Support relating thereto, and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportthereunder, in each case, case at its own expense cost and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall it shall, upon the occurrence and during the continuance of an Event of Default, take such action as such Grantor it or the Administrative Agent may reasonably deem necessary or advisablenecessary. Notwithstanding the foregoing, Collateral the Administrative Agent shall have the right at any time while after the occurrence and during the continuance of an Event of Default is continuing to notify, or require any such Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of Collateral the Administrative Agent's ’s security interest in the Receivables therein, and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may: (xA) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Administrative Agent and (zB) enforce, at the cost and expense of such Grantor, collection of any such Receivables thereof and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might would be able to have done. If Collateral the Administrative Agent notifies any such Grantor that it has elected to collect the Receivables any such Receivable, Supporting Obligation or Collateral Support in accordance with the preceding sentence, any payments of Receivables thereof received by such Grantor shall not be forthwith (and in commingled with any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and its other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation funds or Collateral Support property but shall be received held separate and apart therefrom, shall be held in trust for the benefit of Collateral the Administrative Agent hereunder and shall be segregated from other funds of such Grantor forthwith delivered to the Administrative Agent in the same form as so received (with any necessary indorsement), and such Grantor shall not adjustgrant any extension of the time of payment thereof, compromise, compound or settle or compromise the same for less than the full amount or payment of any Receivablethereof, or release the same, wholly or partly any Account Debtor or obligor thereofpartly, or allow any credit or discount whatsoever thereon; and.
(viiv) it It shall use commercially its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(v) During the continuance of a Default, at the request of the Administrative Agent, it shall direct each Account Debtor to make payment on each Receivable to the extent advisable in its reasonable business judgmenta Controlled Account.
Appears in 1 contract
Samples: Pledge and Security Agreement (Harvard Bioscience Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true accurate and complete records of the Receivables, including, but not limited to, records Receivables as are customarily maintained under similar circumstances by Persons of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithestablished reputation engaged in similar businesses;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Revolving Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of evidencing Material Receivables (other than any delivered to the Revolving Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that each of the Revolving Collateral Agent and the Secured Notes Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than in the ordinary course of business or as permitted by the Revolving Credit Agreement, it shall not amend, modify, terminate or waive any provision of any Receivable in excess of $250,000 individually for any invoice or $1,000,000 in the aggregate for any account (“Material Receivable”) in any manner which could reasonably be expected to have a material adverse effect on the value of such Material Adverse EffectReceivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofbusiness, and except as otherwise provided in subsection (v) below, while after the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w1) grant any extension or renewal of the time of payment of any Material Receivable, (x2) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (y3) release, wholly or partially, any Person liable for the payment thereof, or (z4) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall may continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently may exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in additionexpense; provided however, at any time following the occurrence and during the continuation of an Event of Default, the Revolving Collateral Agent may, subject to the terms of the Intercreditor Agreement: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Revolving Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Revolving Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Revolving Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Revolving Collateral Agent if required, in a collateral account maintained under Securities Account or Deposit Account subject to a control agreement in the sole dominion form of Exhibit B or Exhibit C, or such other control agreement in form and control of substance reasonably satisfactory to the Revolving Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Revolving Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Covenants and Agreements. Each Grantor hereby covenants It is further agreed as follows:
Section 6.1 Conduct of Business by OEI and agrees thatUMC. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be permitted pursuant to this Agreement:
(a) Except as set forth in Section 6.1 of the OEI Disclosure Schedule, OEI:
(i) it shall, and shall keep and maintain at cause each of its own cost and expense true and complete records of the Receivables, including, but not limited Subsidiaries to, records conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted, and shall use all payments received commercially reasonable efforts to preserve intact its present business organization, keep available the services of its current officers and all credits granted on employees and endeavor to preserve relationships with customers, suppliers and others having business dealings with it to the Receivables, all merchandise returned end that its goodwill and all other dealings therewithongoing business shall not be impaired in any material respect at the Effective Time;
(ii) if requested by Collateral Agent while an Event of Default is continuingshall not, and it shall xxxx conspicuouslynot permit any of its Subsidiaries to, acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in form and manner reasonably satisfactory to Collateral Agentor any of the assets of, all Chattel Paperor by any other manner, Instruments and any business or any corporation, partnership, association or other evidence of Receivables (business organization or division thereof, other than any delivered to Collateral Agent as provided herein), as well as such acquisition or acquisitions having a purchase price not exceeding $50,000,000 in the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinaggregate;
(iii) except shall not, other than: (A) as could not reasonably may be expected necessary or required by law to have a Material Adverse Effectconsummate the transactions contemplated hereby or (B) sales, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amendleases, modify, terminate encumbrances or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than other dispositions in the ordinary course of business consistent with past practice that are not material, individually or in the aggregate, to OEI and its Subsidiaries taken as generally conducted by it on and prior to the date hereofa whole, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor it shall not (w) grant permit any extension of its Subsidiaries to, sell, lease, encumber or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereofotherwise dispose of, or agree to sell, lease (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.whether
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true accurate and complete records of the Receivables, includingas is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithin any event in conformity with GAAP;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral other than in the ordinary course of business. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (viii) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall may continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently may exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in additionexpense; provided however, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Samples: Pledge and Security Agreement (American Achievement Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially its reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith[Reserved];
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used (A) in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence violation of Receivables any provision of this Agreement or (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iiiB) except as could not reasonably be expected to have result in a Material Adverse EffectImpairment, unlawfully or in material violation of any applicable material statute, regulation or ordinance or any policy of insurance covering the Collateral;
(iii) it shall perform all not change its name, type of its obligations with respect organization, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) unless it shall (A) promptly after such change or establishment notify the Collateral Agent in writing, by executing and delivering to the ReceivablesCollateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, of any such change or establishment, identifying such new proposed name, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure and providing the Collateral Agent with copies of any relevant filings and such other information in connection therewith as the Collateral Agent may reasonably request and (B) take all actions required by applicable law, to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) to the extent required by the Indenture, it shall not amendpay promptly when due all property and other taxes, modifyassessments and governmental charges or levies imposed upon, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in and all claims (including claims for labor, materials and supplies) against, the ordinary course of business as generally conducted by it on and prior Collateral, except to the date hereof, and except as otherwise provided extent the validity thereof is being contested in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereongood faith;
(v) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor permitted under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect Section 4.10 of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonIndenture; and
(vi) it shall use commercially reasonable efforts to keep in full force unless and effect any Supporting Obligation or until all of the Equity Interests of and intercompany notes issued by Xxxxxxxxxxx & Co., Inc. are pledged as Collateral Support relating to any Receivable without regard to the extent advisable limitation described in its reasonable business judgmentSection 1.04(c) or (d), Xxxxxxxxxxx & Co., Inc. shall remain a direct Wholly-Owned Subsidiary of Viner Finance Inc. and the Company shall not permit such Equity Interests or intercompany loans to be subject to other Liens.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory xxxisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable other than in any manner which could reasonably be expected to have a Material Adverse Effectthe ordinary course of its business. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event during the continuance of Default is continuinga Default, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of a Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Covenants and Agreements. Each Grantor Pledgor hereby covenants and agrees that:
(ia) it shall keep and maintain at its own cost and expense true and complete records of except for the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested security interest created by Collateral Agent while an Event of Default is continuingthis Agreement, it shall xxxx conspicuously, in form and manner reasonably satisfactory not create or suffer to exist any Lien upon or with respect to any of the Loan Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided hereinLiens arising by operation of law), as well as and Pledgor shall defend the Receivables Records with an appropriate reference to the fact that Loan Collateral Agent has a security against all persons at any time claiming any interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(ivb) it shall not amend, modify, terminate permit any of its rights under the Intercompany Loan Agreements to be evidenced by an instrument;
(c) it shall not use or waive permit any Loan Collateral to be used unlawfully or in violation of any provision of this Agreement or any Receivable in applicable statute, regulation or ordinance or any manner which could reasonably be expected to have a Material Adverse Effect. Other than in policy of insurance covering the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonLoan Collateral;
(vd) except as otherwise provided it shall not change its name, identity, corporate structure (e.g. by merger, consolidation, change in this subsectioncorporate form or otherwise), each Grantor sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or (i) notified Collateral Support, Agent in each casewriting, at its own expense least thirty days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office, jurisdiction of organization or trade name and to the extent advisable in its reasonable business judgment, and providing such other information in connection with such collections therewith as Collateral Agent may reasonably request and exercise, such Grantor shall take such action as such Grantor may deem (ii) taken all actions necessary or advisable. Notwithstanding advisable to maintain the foregoingcontinuous validity, Collateral Agent shall have perfection and the right at any time while an Event of Default is continuing to notify, same or require any Grantor to notify, any Account Debtor better priority of Collateral Agent's ’s security interest in the Receivables Loan Collateral granted or intended to be granted and agreed to hereby;
(e) upon Pledgor or any Supporting Obligation andofficer of Pledgor obtaining knowledge thereof, in addition, at any time following the occurrence and during the continuation of an Event of Default, it shall promptly notify Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection writing of any such Receivables event that may materially and to adjust, settle adversely affect the value of the Loan Collateral or compromise the amount or payment any portion thereof, in the same manner and ability of Pledgor to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect dispose of the Receivables, Loan Collateral or any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor portion thereof, or allow the rights and remedies of Pledgor in relation thereto, including, without limitation, the levy of any credit legal process against the Loan Collateral or discount thereonany portion thereof; and
(vif) it shall use commercially reasonable efforts to keep not take or permit any action which could impair Collateral Agent’s rights in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentLoan Collateral.
Appears in 1 contract
Samples: Pledge and Security Agreement (Xinyuan Real Estate Co., Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(iA) it shall keep and maintain at its own cost and expense true and complete records of except for the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested security interest created by Collateral Agent while an Event of Default is continuingthis Agreement, it shall xxxx conspicuouslynot create or suffer to exist any Lien upon or with respect to any of the Collateral, in form except Permitted Liens, and manner reasonably satisfactory such Grantor shall (A) defend the Collateral against all Persons at any time claiming any interest therein and (B) file such financing or continuation statements, or amendments thereto, as may be requested by the Collateral Agent to Collateral Agent, all Chattel Paper, Instruments and other evidence preserve the perfection of Receivables the security interests granted hereunder (other than any delivered to security interests in Collateral Agent as provided hereinconstituting fixtures), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(ivB) it shall not amend, modify, terminate use or waive permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any Receivable in applicable statute, regulation or ordinance or any manner which could reasonably be expected to have a Material Adverse Effect. Other than in policy of insurance covering the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonCollateral;
(vC) except as otherwise provided it shall not change Grantor's name or jurisdiction of organization unless it shall have (a) notified Collateral Agent in this subsectionwriting, each Grantor shall continue by executing and delivering to collect all amounts due or Collateral Agent a completed Security Agreement Supplement, substantially in the form of Exhibit A attached hereto, together with a supplement to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each caseSchedule 4.1, at its own expense least thirty (30) days prior to any such change, identifying such new proposed name or jurisdiction of organization and (b) taken all actions necessary to maintain the extent advisable in its reasonable business judgment, continuous validity and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor perfection of Collateral Agent's security interest in the Receivables Collateral intended to be granted hereby;
(D) it shall make payment of (i) all taxes, assessments, license fees, levies and other charges of Governmental Bodies imposed upon it which if unpaid, would be reasonably likely to become a Lien on the Collateral that is not a Permitted Lien, and (ii) all claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payable and which by law have or are reasonably likely to become a Lien upon any Supporting Obligation andof the Collateral other than a Permitted Lien;
(E) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, in addition, at any time following the occurrence and during the continuation of an Event of Default, it shall promptly notify Collateral Agent may: in writing of the levy of any legal process against the Collateral or any portion thereof; and
(F) it shall (i) within 15 calendar days after either the end of each calendar quarter or the request of the Collateral Agent (at the written direction of the Acting Secured Parties), report to Collateral Agent any new individual item of Collateral acquired by such Grantor during such quarter that (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; is Material, (y) notifyis not Money, Letter-of-Credit Rights or require any Grantor to notifythe subject of the provisions of Section 4.4, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforcewas not previously disclosed hereunder, (ii) provide such other information and take such other actions in connection with such new Collateral as Collateral Agent (at the expense written direction of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business DaysActing Secured Parties) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agentmay reasonably request, and until so turned over, all amounts and proceeds (including checks and other instrumentsiii) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable not inconsistent with any other applicable provisions of this Agreement (including, without limitation, Section 5.1(a)(ii)), take all actions necessary to create and perfect the security interest intended to be created hereby in its reasonable business judgmentsuch new Collateral; provided, however, that any failure to comply with the requirements of this Paragraph (F) shall not constitute a Default if (I) the actions previously taken in connection with this Agreement are effective to create and perfect the security interest intended to be created hereby in such new Collateral, or (II) such failure is subsequently remedied at a time when no other Lien (other than a Permitted Lien) on such Collateral shall have attached and become perfected.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records ) with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently in the exercise of its business judgment exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall following an Event of Default and during the continuance thereof take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (2) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y3) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z4) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral an account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral, includingexcept Permitted Liens, but not limited to, records of and such Grantor shall defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of its obligations with respect business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the ReceivablesCollateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior (or such shorter period of time as is consented to by the Collateral Agent in writing) to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall not amend, modify, terminate or waive any provision use such value for such purposes and such Grantor further agrees that repayment of any Receivable Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any manner which could reasonably Collateral shall be expected to have a Material Adverse Effect. Other than paid in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, chronological order such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonacquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable the validity thereof is being contested in its reasonable business judgment, and in connection with such collections and exercisegood faith; provided, such Grantor shall take in any event pay such action as taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor may deem necessary or advisable. Notwithstanding any of the foregoingCollateral as a result of the failure to make such payment;
(vi) upon any Authorized Officer of Grantor obtaining knowledge thereof, such Grantor shall promptly notify the Collateral Agent shall in writing of any event that may have a material adverse effect on the right at value of the Collateral or any time while an Event material portion thereof, the ability of Default is continuing any Grantor or the Collateral Agent to notifydispose of the Collateral or any portion thereof, or require the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any Grantor to notify, legal process against the Collateral or any Account Debtor of portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent's security interest ’s rights in the Receivables and Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent except as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables otherwise in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentCredit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Medical Systems Holdings Inc)
Covenants and Agreements. Each Grantor hereby The Pledgor covenants and agrees thatthat on and after the date hereof until the Payment in full of the Secured Obligations and the termination and discharge of the Indenture, unless the Collateral Agent shall otherwise consent in writing:
(ia) it shall keep At any time and maintain at its own cost and expense true and complete records from time to time, upon the reasonable request of the ReceivablesCollateral Agent, and at the sole expense of the Pledgor, the Pledgor shall promptly do, file, record, execute and deliver any and all such further notices, instruments and documents and will take such further action as may be reasonably deemed necessary or desirable in the judgment of the Collateral Agent and its counsel to obtain, protect and perfect the security interests granted hereby and enforce and give effect to the rights, remedies and powers hereunder, including, but not limited towithout limitation, records and the recording or filing of all payments received instruments and all credits documents reasonably necessary to perfect and protect the perfection of the security interests granted on hereby under Articles 8 or 9 of the ReceivablesUniform Commercial Code in effect in any applicable jurisdiction. In connection therewith, the Collateral Agent is hereby irrevocably authorized and empowered as the Pledgor's attorney-in-fact, solely to make, at the Collateral Agent's option, all merchandise returned filings and to give all other dealings therewith;
(ii) if requested by notices as it shall reasonably deem necessary with respect to any of the Pledged Collateral, all of which may be done with or without the signature of the Pledgor. The Pledgor agrees that the foregoing power constitutes a power coupled with an interest which shall survive until the Payment in full of all of the Secured Obligations. The Pledgor agrees to reimburse the Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form on demand for any actual and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments reasonable expenses (including reasonable attorneys' fees and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations expenses with respect to the Receivables;
(ivCollateral Agent, including reasonable allocated costs and expenses of in-house counsel and legal staff) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in incurred by the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and Agent in connection with such collections and exercisematters and, until such reimbursement, such Grantor expenses shall take such action as such Grantor may deem necessary or advisable. Notwithstanding be a part of the foregoing, Secured Obligations.
(b) The Pledgor shall defend its ownership interest in and to the Collateral Agent shall have and the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in and to the Receivables Pledged Collateral against all claims and any Supporting Obligation and, in addition, demands of all Persons at any time following claiming the occurrence same or any interest therein adverse to the interests of the Collateral Agent.
(c) The Pledgor shall, at all times, maintain or cause to be maintained accurate books and during records with respect to the continuation of an Event of DefaultPledged Collateral, and shall furnish to the Collateral Agent may: (x) direct such information concerning such Pledged Collateral as the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items Agent may from time to time sent to or deposited in such lockbox or other arrangement directly to reasonably request. The Collateral Agent; Agent and (z) enforceits designees are hereby given the right, at the expense Pledgor's expense, to inspect and copy, following prior notice to the Pledgor and during regular business hours, or the Pledgor shall furnish the Collateral Agent with copies of, all records and documents reasonably required by the Collateral Agent relating to the Pledged Collateral.
(d) The Pledgor shall not further hypothecate, assign, pledge, encumber, transfer, sell or otherwise dispose of, or grant any option with respect to, or create or suffer to exist a security interest in, or a Lien on, the Pledged Collateral or any portion thereof, except for the pledge, assignment and security interest created by this Agreement in favor of such Grantor, collection the Collateral Agent and except as contemplated by Article 12 of the Indenture. The inclusion of "Proceeds" of the Pledged Collateral under the security interest granted herein shall not be deemed a consent by the Collateral Agent to any sale or other disposition of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent Pledged Collateral except as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentexpressly permitted herein.
Appears in 1 contract
Samples: Pledge Agreement (Cd Radio Inc)
Covenants and Agreements. Each The Grantor hereby covenants and agrees as follows:
(a) It shall, at its own cost and expense, take any and all actions necessary to defend title to the Collateral owned or rights in Collateral against all Persons and to defend the Security Interest in such Collateral and the priority thereof against any Lien or other interest, and in furtherance thereof, it shall not take, or permit to be taken, any action not otherwise expressly permitted by the Loan Documents that could impair the Security Interest or the priority thereof or any Secured Party’s rights in or to such Collateral.
(b) During normal business hours and upon reasonable advance notice, the Administrative Agent and such Persons as the Administrative Agent may designate shall, as often as reasonably requested, have the right, at the cost and expense of the Grantor, to inspect all of its records (and to make extracts and copies from such records), to discuss its affairs with its officers and independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Collateral owned or rights in Collateral held by or on behalf of the Grantor. The Administrative Agent shall have the absolute right to share on a confidential basis any information it gains from such inspection or verification with any Secured Party.
(c) At its option, the Administrative Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral owned or held by or on behalf of the Grantor, and not permitted by the Loan Documents, and may pay for the maintenance and preservation of such Collateral to the extent the Grantor fails to do so as required by the Loan Documents, and the Grantor agrees to reimburse the Administrative Agent on demand for any payment made or any expense incurred by the Administrative Agent pursuant to the foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing the Grantor from the performance of, or imposing any obligation on the Administrative Agent or any other Secured Party to cure or perform, any covenants or other promises of the Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.
(d) It shall not make, or permit to be made, an assignment, pledge or hypothecation of the Collateral, or grant any other Lien in respect of such Collateral. Except for Liens or transfers expressly permitted by the Loan Documents, it shall not make or permit to be made any transfer of such Collateral, and it shall remain at all times the direct owner, beneficially and of record, of the Collateral.
(e) It will not change its state of organization, maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location specified in Section 3.1(e) or change its name, state organization number or taxpayer identification number unless the Grantor shall have given the Administrative Agent not less than 30 days’ prior written notice of such event or occurrence and the Administrative Agent shall have either (x) determined that such event or occurrence will not adversely affect the validity, perfection or priority of the Administrative Agent’s security interest in the Collateral, or (y) taken such steps (with the cooperation of the Grantor to the extent necessary or advisable) as are necessary or advisable to properly maintain the validity, perfection and priority of the Administrative Agent’s security interest in the Collateral.
(f) The Grantor hereby agrees that all pledged Equity Interests shall at all times be evidenced by Security Certificates, all of which shall be in the possession of the Administrative Agent and accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Administrative Agent.
(g) The Grantor hereby agrees that it will not create or acquire any subsidiary.
(h) The Grantor may consummate the Proposed Reorganization provided that:
(i) it shall keep and maintain at its own cost and expense true and complete records the consummation of the Receivables, including, but not limited to, records of all payments received and all credits granted on Proposed Reorganization is permitted by the Receivables, all merchandise returned and all other dealings therewithCredit Agreement;
(ii) if requested by Collateral Agent while an Event the Grantor complies with the provisions of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables clause (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereine) above;
(iii) except VP Distributors, LLC, the survivor of the Merger (as could not reasonably be expected to defined in Schedule 1.1), shall have a Material Adverse Effect, it shall perform all of its obligations with respect executed and delivered to the ReceivablesAdministrative Agent an instrument of assumption, in form and substance satisfactory to the Administrative Agent, by which it assumes the obligations of the Grantor hereunder;
(iv) it shall not amend, modify, terminate or waive any provision the distribution of any Receivable in any manner which could reasonably be expected the Pledged Equity Interests to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior Virtus Partners is subject to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonsecurity interest granted hereunder;
(v) except as otherwise provided substantially contemporaneously with the distribution of the Pledged Equity Interests to Virtus Partners, the Security Certificate evidencing the Pledged Equity Interests shall have been replaced by a new Security Certificate registered in this subsectionthe name of Virtus Partners, each Grantor which Security Certificate (together with an undated stock power executed in blank) shall continue have been pledged to collect all amounts due or to become due to such Grantor the Administrative Agent by Virtus Partners under the Receivables Security Agreement, it being understood and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Supportagreed that upon receipt of such new Security Certificate, in each case, at its own expense and the Security Certificate delivered by the Grantor on the Closing Date shall be delivered by the Administrative Agent to Virtus Partners which will cancel the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding same;
(vi) the foregoing, Collateral Administrative Agent shall have the right at any time while an Event of Default is continuing to notifyreceived from VP Distributors, or require any Grantor to notifyLLC, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds certificates (including checks good standing certificates), UCC-1 financing statements and other instruments) received by such Grantor in respect search reports required of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for Grantor on the benefit Closing Date pursuant to Section 5.1 of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCredit Agreement; and
(vivii) the Administrative Agent shall have received such opinions of counsel regarding the Proposed Reorganization, the assumption by VP Distributors, LLC of this Agreement, the perfection of the security interest granted by Virtus Partners in the Pledged Equity Interests and the Equity Interests in VP Distributors, LLC as it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentreasonably require.
Appears in 1 contract
Samples: Credit Agreement (Virtus Investment Partners, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:agrees
(i) it shall keep and maintain at its own cost and expense true and materially complete records of the Receivables, in form reasonably satisfactory to the Grantee, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it the Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference promptly deliver to the fact that Collateral Agent has Grantee upon its request a security interest therein;complete and correct copy of each standard form of document or other document under which a Receivable may arise.
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable constituting Collateral in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of the Collateral, taken as a whole. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following the occurrence and during the continuation of an Event of Default is continuingDefault, such the Grantor shall not not, without the prior written approval of the Grantee: (wa) grant any extension or renewal of the time of payment of any Receivable, (xb) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yc) release, wholly or partially, any Person liable for the payment thereof, or (zd) allow any credit or discount thereon;
(viv) except as otherwise provided in this subsection, each the Grantor shall continue to collect all amounts due or to become due to such the Grantor under the Receivables and any Receivable or any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such the Grantor shall take such action as such the Grantor or, following the occurrence and during the continuation of an Event of Default, the Grantee may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent the Grantee shall have the right at any time while time, following the occurrence and during the continuation of an Event of Default is continuing Default, to notify, or require any the Grantor to notify, any Account Debtor of Collateral Agent's the Grantee’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent maythe Grantee shall have the right to: (xa) direct the Account Debtors Debtor under any Receivables to make payment of all amounts due or to become due to such the Grantor thereunder directly to Collateral Agent; the Grantee, (yb) notify, or require any the Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors Debtor under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; the Grantee, and (zc) enforce, at the expense of such Grantor, enforce collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such the Grantor might have done. If Collateral Agent the Grantee notifies any the Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such the Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such the Grantor in the exact form received, duly indorsed by such the Grantor to Collateral Agent the Grantee if required, into an account to be designated by the Grantee in a collateral account maintained under writing to the sole dominion and control of Collateral AgentGrantor, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such the Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonGrantee hereunder; and
(viv) it shall use its commercially reasonable efforts (or, following the occurrence and during the continuation of an Event of Default if directed by the Grantee, its commercially reasonable best efforts) to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, Receivables in its reasonable business judgment and consistent with its past practice including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on the such Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofand, and except as otherwise provided in subsection (viii) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;; NY12534:167338.25
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following delivery by the occurrence and during the continuation Administrative Agent to Borrower of notice of an Event of Default, the Collateral Agent may: may (xA) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account Securities Account or Deposit Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (Oppenheimer Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, Receivables in its reasonable business judgment and consistent with its past practice including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on the such Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofand, and except as otherwise provided in subsection (viii) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent (acting pursuant to the direction it receives under the Indenture), may deem necessary or advisable. Notwithstanding the foregoing, subject to the Intercreditor Agreement (if applicable), the Collateral Agent shall have the right at any time while during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following delivery by the occurrence and during Trustee to the continuation Company of notice of an Event of Default, the Collateral Agent may: , subject to the Intercreditor Agreement (xif applicable) (A) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (yB) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (zC) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account Securities Account or Deposit Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby Prior to Closing, Seller covenants and agrees thatas follows:
(a) Seller shall give Purchaser and Purchaser’s agents, representatives, contractors and designees full access to the Property in order to make such inspections, surveys, test borings, soil analyses and other tests and surveys thereon as Purchaser, in its sole discretion, shall deem advisable. Seller shall furnish Purchaser such additional information concerning the ownership, management, operation and the condition of the Property as Purchaser may reasonably request. The cost and expenses of Purchaser’s investigation shall be borne solely by Purchaser. Purchaser shall indemnify and hold Seller harmless for any property damage or injury caused by Purchaser in connection with such inspections and tests, and this provision shall survive the termination or closing of this Contract;
(b) From and after the date hereof, Seller shall not (i) perform any grading or excavation, construction or removal of any improvement or make any other change or improvement upon or about the Property, (ii) create or incur, or suffer to exist, any mortgage, lien, pledge or other encumbrance in any way affecting the Property, other than the lien for taxes not yet due and payable and existing liens to be released at the Closing, (iii) commit any waste or nuisance upon the Property, or (iv) impose any easements, covenants, conditions or restrictions on the Property or institute or participate in any annexation, zoning, platting, dedication or other governmental action regarding the Property;
(c) Notwithstanding any other provisions contained herein, Seller, from the Purchase Price proceeds or otherwise, shall pay and discharge all liens against the Property other than the lien for current taxes which are not yet due and payable such that title to the Property will be conveyed to Purchaser free and clear of all liens other than the lien for current taxes which are not yet due and payable;
(d) Seller shall not, without the prior written consent of Purchaser, enter into, transfer, encumber, amend, extend, modify or in any way alter any lease, contract or agreement which affects the Property;
(e) Seller will cause the Property to be maintained and operated in a good manner in accordance with the manner as is being conducted at the time of execution hereof and in compliance with all applicable laws, rules and regulations, restrictive covenants and zoning ordinances. Seller will not use or occupy, or allow the use or occupancy of, the Property in any manner which violates any applicable laws, rules and regulations, restrictive covenants and zoning ordinances or which constitutes waste or a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. Seller will not permit the introduction or storage of any pollutants on the Land. Seller will not do or suffer to be done any act whereby the value of any part of the Property may be materially lessened;
(f) Seller will advise Purchaser promptly of any change in any applicable laws, regulations, restrictions, rulings, or orders which might affect the value or use of the Property by Purchaser of which Seller obtains knowledge. Seller will also advise Purchaser promptly of any litigation, arbitration or administrative hearing concerning or affecting the Property of which Seller obtains knowledge;
(g) Seller will not take any action or omit to take any action, which action or omission would have the effect of violating any of the representations and warranties of Seller contained in the Contract;
(h) Seller shall promptly furnish Purchaser with any and all notices concerning the Property that Seller receives from any and all appraisal districts, taxing authorities or any other governmental entities or of any litigation, arbitration or administrative hearing concerning the Property and any other material changes prior to Closing in any of the facts reflected in any statements, certificates, schedules, or other documents or any representation or warranties made or furnished by Seller in connection with this transaction. This covenant shall survive the Closing; and
(i) it In the event the Property is subject to any deed restrictions or restrictive covenants of any kind (“CCRs”), Seller shall keep diligently cooperate with and maintain at its own cost and expense true and complete records of assist Purchaser in obtaining from all appropriate parties to the ReceivablesCCRs, includingincluding any owner association, but not limited toany consents, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if approvals and/or estoppels requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentPurchaser.
Appears in 1 contract
Samples: Contract of Sale
Covenants and Agreements. Each Grantor Landlord and Tenant hereby covenants covenant and agrees thatagree as follows:
(ia) it All further rights of Tenant under the Lease to renew or extend the Lease shall keep and maintain at its own cost and expense true and complete records be exercisable by each Lender, with the actions of Mortgage Lender having priority over the Receivables, including, but not limited to, records actions of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;any Mezzanine Lender if such parties seek to take inconsistent actions.
(iib) if requested by Collateral Agent while an Event Any mortgage, deed of Default is continuingtrust, it security deed or other instrument from time to time encumbering Landlord’s fee interest in the Premises shall xxxx conspicuously, in form be subject and manner reasonably satisfactory subordinate to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables the
(other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference c) Notwithstanding anything to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than contrary contained elsewhere in the ordinary course Lease, Tenant or its direct or indirect equity owners, from time to time and without the consent of business as generally conducted by it on and prior to the date hereofLandlord, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notifyincur indebtedness secured by, or require any Grantor and to notify, any Account Debtor of Collateral Agent's security subject Xxxxxx’s interest in the Receivables Lease and any Supporting Obligation andthe Premises and/or the Mezzanine Collateral to, in additiona leasehold mortgage, at any time following deed of trust, deed to secure debt, pledge and assignment of the occurrence Mezzanine Collateral and during similar liens and associated documents (such as an assignment of leases and rents and/or a security agreement), and the continuation of an Event of Default, Collateral Agent may: (xholder(s) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in of such lockbox financing and leasehold mortgage, deed of trust, pledge and assignment or other arrangement directly security shall, upon providing notice thereof to Collateral Agent; Landlord pursuant to the notice provisions of this Consent, have the same rights and (z) enforcebenefits under the Lease and this Consent as those granted to the Lenders under the Lease and this Consent, at the expense and each such leasehold mortgage, deed of such Grantortrust, collection deed to secure debt or similar instrument in favor of any such Receivables holder(s) shall constitute a Security Instrument for all purposes hereunder and under the Lease.
(d) Within ten (10) days after request by any Lender, from time to adjusttime made, settle Landlord will execute and deliver to such Lender, or compromise to such other person or entity as may be specified by such Lender, an estoppel certificate containing such information concerning the amount or payment thereof, in the same manner and to the same extent Lease as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentLender may reasonably request.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true accurate and complete records of the Receivables, includingas is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithin any event in conformity with GAAP;
(ii) if requested by Collateral Agent while other than in the ordinary course of business and except as otherwise provided in subsection (iii) below, upon the occurrence and during the continuation of an Event of Default is continuingDefault, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it such Grantor shall not (v) amend, modify, terminate or waive any provision of any Receivable in excess of Canadian Dollars $600,000 individually for any invoice or Canadian Dollars $5,000,000 in the aggregate for any account (“Material Receivables”) in any manner which could reasonably be expected to have a material adverse effect on the value of such Material Adverse Effect. Other than in the ordinary course of business Receivable as generally conducted by it on and prior to the date hereofCollateral, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Material Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall may continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently may exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense; provided, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in additionhowever, at any time following the occurrence and during the continuation of an Event of Default, Collateral the Canadian Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral the Canadian Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral the Canadian Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral the Canadian Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) promptly deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral the Canadian Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of Collateral the Canadian Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation Receivables or Collateral Support shall be received in trust for the benefit of Collateral the Canadian Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Material Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and;
(viiv) except as it shall determine otherwise in the ordinary course of business, it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Receivable; and
(v) it shall notify the Canadian Agent in writing the next Quarterly Reporting Date following receipt of any Material Receivable to in respect of which the extent advisable in its reasonable business judgmentAccount Debtor is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.
Appears in 1 contract
Samples: Pledge and Security Agreement (Easton-Bell Sports, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with the Joint Collateral Agent and each other Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations, the cancellation or termination of the Commitments and the cancellation or expiration of all Outstanding Letters of Credit that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while it shall promptly transfer or cause to be transferred all funds arising from the collection of all Receivables (A) to a Deposit Account of any Grantor and (B) in any event, no later than two (2) Business Days after transfer to the account in (A) above, to a Concentration Account listed on Schedule 4.4(A)(8)(a) hereto (as such schedule may be amended or supplemented from time to time) or, upon the occurrence of and during the existence of an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to at the direction of the Joint Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables to a Collection Account listed on Schedule 4.4(A)(8)(c) hereto (other than any delivered as such schedule may be amended or supplemented from time to Collateral Agent as provided hereintime), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables as it deems appropriate or advisable in the exercise of its business judgment;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, thereof or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect collect, or cause to be collected, all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, as it deems appropriate or advisable in the exercise of its business judgment, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or, during the existence of an Event of Default, the Joint Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, during the existence of an Event of Default, the Joint Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify (and if so, such Grantor shall so notify), any Account Debtor of the Joint Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Joint Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Joint Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) it shall keep and maintain at its own cost and expense true and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithits Receivables consistent with its past practice;
(ii) if requested by at the request of the Collateral Agent while after the occurrence and during the continuation of an Event of Default is continuingDefault, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all of its Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent or the First Lien Collateral Agent as provided hereinherein and in the First Lien Security Agreement and Instruments deposited in a Deposit Account for collection in the ordinary course of business), as well as the its Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables in accordance with its normal business practice;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following the occurrence and during the continuation of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivableof its Receivables, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable of its Receivables for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect in accordance with its past business practice, all amounts due or to become due to such Grantor under the its Receivables and any Supporting Obligation and diligently exercise in accordance with its past business practice each material right it may have under any Receivable of its Receivables, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, subject to the terms of the Intercreditor Agreement, the Collateral Agent shall have the right at any time while following the occurrence and during the continuation of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may, subject to the terms of the Intercreditor Agreement: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Samples: Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral, includingexcept Permitted Liens, but not limited to, records of and such Grantor shall defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), chief executive office, type of its obligations with respect organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the ReceivablesCollateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least twenty (20) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions reasonably necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall not amend, modify, terminate or waive any provision use such value for such purposes and such Grantor further agrees that repayment of any Receivable Obligation shall apply on a “first-in, first- out” basis so that the portion of the value used to acquire rights in any manner which could reasonably Collateral shall be expected to have a Material Adverse Effect. Other than paid in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, chronological order such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonacquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable the validity thereof is being contested in its reasonable business judgment, and in connection with such collections and exercisegood faith; provided, such Grantor shall take in any event pay such action as taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor may deem necessary or advisable. Notwithstanding any of the foregoingCollateral as a result of the failure to make such payment;
(vi) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent shall in writing of any event that may have a Material Adverse Effect on the right at ability of any time while an Event Grantor or the Collateral Agent to dispose of Default is continuing to notifythe Collateral or any portion thereof, or require the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any Grantor to notify, legal process against the Collateral or any Account Debtor of portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent's security interest ’s rights in the Receivables and Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent except as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables otherwise in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentFinancing Agreement.
Appears in 1 contract
Samples: Financing Agreement (Model N, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation with respect to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory to satisfactoxx xo the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse EffectEffect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations and termination of all Commitments:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the ReceivablesReceivables as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar business, and in any event in conformity with GAAP including, but not limited to, the originals of all documentation with respect to all such Receivables and records of all payments received and all credits granted on the such Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which that could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofit, and except as otherwise provided in subsection (v) below, while during the continuance of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while following the occurrence and during the continuation of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory to the Collateral AgentAgent(acting upon a Direction of the Requisite Lenders in their reasonable discretion) , all Chattel Paper, Instruments and other evidence of Receivables with a value in excess of $500,000 individually or $1,000,000 in the aggregate together with all such Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) belowbelow (a) it shall not amend, while modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral and (b) upon the occurrence and during the continuance of an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent (acting upon a Direction of the Requisite Lenders) may deem necessary or advisableadvisable and consistent with the ordinary course of Grantor’s business. Notwithstanding the foregoingforegoing but subject in all respects to all Requirements of Law, the Collateral Agent shall have the right at any time while following the occurrence and during the continuation of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two three (3) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Obligations (other than unmatured contingent obligations) and the expiration or termination of all Hedge Agreements:
(i) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral, includingexcept Permitted Liens, but not limited to, records of and such Grantor shall defend the Collateral against all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithPersons at any time claiming any interest therein;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used unlawfully or in form and manner reasonably satisfactory to Collateral Agentviolation of any provision of this Agreement or any applicable statute, all Chattel Paper, Instruments and other evidence regulation or ordinance or any policy of Receivables (other than any delivered to Collateral Agent as provided herein), as well as insurance covering the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest thereinCollateral;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of its obligations with respect business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the ReceivablesCollateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall not amend, modify, terminate or waive any provision use such value for such purposes and such Grantor further agrees that repayment of any Receivable Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any manner which could reasonably Collateral shall be expected to have a Material Adverse Effect. Other than paid in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, chronological order such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereonacquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable the validity thereof is being contested in its reasonable business judgment, and in connection with such collections and exercisegood faith; provided, such Grantor shall take in any event pay such action as taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor may deem necessary or advisable. Notwithstanding any of the foregoingCollateral as a result of the failure to make such payment;
(vi) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent shall in writing of any event that may have a Material Adverse Effect on the right at value of the Collateral or any time while an Event portion thereof, the ability of Default is continuing any Grantor or the Collateral Agent to notifydispose of the Collateral or any portion thereof, or require the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any Grantor to notify, legal process against the Collateral or any Account Debtor of portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent's security interest ’s rights in the Receivables and Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent except as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables otherwise permitted in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentCredit Agreement.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense true satisfactory and complete records of the Receivables, includingin reasonable detail as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar business, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithin any event in conformity with GAAP;
(ii) if requested by upon the request of the Collateral Agent while an Event of Default is continuingAgent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other other than in the ordinary course of business as generally conducted by it on and prior to the date hereof, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such Grantor shall not (wA) grant any extension or renewal of the time of payment of any Receivable, (xB) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (yC) release, wholly or partially, any Person liable for the payment thereof, or (zD) allow any credit or discount thereon, or (E) amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a material and adverse impact on the value of such Receivable as Collateral;
(viv) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgmentexpense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or the Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(vi) it shall use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgment.
Appears in 1 contract
Samples: Financing Agreement (Global Geophysical Services Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until payment in full of all Obligations (other than unmatured contingent obligations), the cancellation or termination of all Commitments, the expiration or termination of the Swap Agreement, all Hedge Agreements and all agreements for Specified Secured Hedge Indebtedness and the cancellation or expiration of all outstanding Letters of Credit:
(i) it shall keep and maintain at perform in all material respects all of its own cost and expense true and complete records of obligations with respect to the Receivables, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) if requested by Collateral Agent while an Event of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all of its obligations with respect to the Receivables;
(ivii) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course of business as generally conducted by it on and prior to the date hereofhereof and, and except as otherwise provided in subsection (v) below, while following an Event of Default is continuingDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(viii) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due or to become due to such Grantor under during the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall continuance of an Event of Default take such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisableto exercise all material rights it may have under Receivables. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time while during the continuance of an Event of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent's ’s security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x1) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y2) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z3) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a collateral account the Collateral Account maintained under the sole dominion and control of the Collateral Agent, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and and, subject to paragraph (i) above, such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable in its reasonable business judgmentReceivable.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (CVR Energy Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself only that:
(i) it except as otherwise permitted under the Credit Agreement, except for the security interest created by this Agreement and except for Permitted Liens, such Grantor shall keep and maintain at its own cost and expense true and complete records not create or suffer to exist any Lien upon or with respect to any of the ReceivablesCollateral of such Grantor, including, but not limited to, records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewithexcept Permitted Liens;
(ii) if requested by Collateral Agent while an Event except as otherwise permitted under the Credit Agreement, upon obtaining knowledge thereof, such Grantor shall defend its title and the existence, perfection and priority of Default is continuing, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, 's security interest in and to the Collateral (for the benefit of the Secured Parties) against all Chattel Paper, Instruments and other evidence of Receivables Persons (other than the Secured Parties and subject to Permitted Liens) that have instituted, or made a non-frivolous threat in writing of, any delivered to Collateral Agent as provided herein), as well as the Receivables Records with Adverse Proceeding claiming an appropriate reference interest therein adverse to the fact that Collateral Agent has a security interest thereinSecured Parties in any material respect;
(iii) except as could not reasonably be expected to have a Material Adverse Effect, it shall perform all not use any Collateral, or otherwise permit any Collateral to be used, in a manner that is unlawful or in violation of its obligations with respect any Credit Document or Governmental Rule (in any material respect) applicable to the ReceivablesCollateral;
(iv) it shall will not amend, modify, terminate change its name or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary course place of business from that set forth on Schedule 4.1(A), without first giving thirty (30) Business Days (or such shorter period of time as generally conducted by it on and Collateral Agent may reasonably agree) prior written notice to the date hereofCollateral Agent, and except as otherwise provided in subsection (v) below, while an Event of Default is continuing, such each Grantor shall not (w) grant any extension or renewal of will take all action reasonably required by the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable Collateral Agent for the payment thereof, purpose of perfecting or (z) allow any credit or discount thereonprotecting the security interest granted by this Agreement;
(v) except as otherwise provided in this subsection, each Grantor shall continue to collect all amounts due the result of a transaction expressly permitted under Section 6.11 of the Credit Agreement or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right unless it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense and to the extent advisable in its reasonable business judgment, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have obtained the right at any time while an Event written consent of Default is continuing to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent's security interest in the Receivables and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Collateral Agent if required, in a collateral account maintained under the sole dominion and control of Collateral Agent, it will not change its type of organization or jurisdiction of organization and until so turned overwill maintain all material rights, all amounts privileges, and proceeds franchises necessary to perform its obligations hereunder;
(including checks and other instrumentsvi) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjusttake or permit any action which could materially impair the Collateral Agent's rights in the Collateral, settle subject to the Grantors' rights to dispose of or compromise abandon rights in the amount Collateral to the extent permitted hereunder or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonunder the Credit Agreement and the right to grant Permitted Liens; and
(vivii) subject to Section 4.3(c) and except as consented to (with respect to clause (B) of this Section 4.1(b)(vii), in writing) by the Administrative Agent and the Collateral Agent such consent not to be unreasonably withheld, delayed or conditioned), it shall use commercially reasonable efforts to keep in full force (A) maintain at all times until the Termination Date the Collection Account and effect any Supporting Obligation or Collateral Support relating to any Receivable to the extent advisable Bank Accounts held in its reasonable business judgmentname, as applicable, and (B) not, until the Termination Date, open other Deposit Accounts or Securities Accounts.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Pattern Energy Group Inc.)
