Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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.
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) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral (except Permitted Liens), and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject except on or prior to good faith disputesthe 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 material respects 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) other than in the ordinary course of business and while no Event of Default existsupon 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 on (x) the value of such Receivable as the Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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 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) each Grantor except for Permitted Sales and Permitted Liens, 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of materially 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 ReceivableCollateral.
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) without the prior written consent of Collateral Agent, it shall keep and maintain at its own cost and expense satisfactory 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, the originals of all documentation with respect to all Receivables and 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, comply in form 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 manner reasonably satisfactory shall enforce all of its rights with respect 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;Investment Related Property; and
(iii) each Grantor consents to the grant by each other than in respect Grantor of obligations subject to good faith disputes, it shall perform a security interest in all material respects all of its obligations with respect Investment Related Property to the Receivables;
(iv) other than in the ordinary course of business and while no Event of Default existsCollateral Agent and, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 Collateral Agent shall have the right at any time during the existence of or its nominee following an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivablepowers 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 satisfactory true 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) upon if requested by Collateral Agent’s reasonable requestAgent 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) other than in respect of obligations subject except as could not reasonably be expected to good faith disputeshave 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 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 Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, while an Event of Default existsis 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 expenseexpense 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 during the existence of while 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: (Ax) 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; (By) 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 (Cz) 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 Account”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableReceivable to the extent advisable in its reasonable business judgment.
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:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Administrative Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (A) 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; the Administrative Agent and (B) 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 (C) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially 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 a Blocked Account or the Concentration Account.
Appears in 3 contracts
Samples: Credit Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, 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 satisfactory and complete records of the Receivablesany time claiming any interest therein, including, but not limited to, the originals of all documentation except 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 therewithPermitted Liens;
(ii) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, 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 material respects 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 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 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) other than in the ordinary course upon such Grantor or any officer of business and while no Event of Default existssuch 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 on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant Collateral or 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 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) each Grantor except otherwise permitted by the Notes Documents, 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of which could 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 each Grantor will maintain its commercially reasonable efforts 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 Receivableforeign governmental authorities for taxes, assessments, levies and duties or in respect 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) it shall keep and maintain at its own cost and expense 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) unless otherwise agreed upon Collateral by the Security Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 in the good faith judgment of such Grantor could reasonably be expected to have a Material Adverse Effect material adverse effect on the value of such Receivable as Collateralthe Receivables or a substantial portion thereof. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof or with the consent of Security Agent, and except as no otherwise provided in subsection (v) below, following and during the continuance of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 after the occurrence and during the existence continuance of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral the Security 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 the Security Agent may: (A1) 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; (B2) 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 (C3) 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 “Collateral Account”)sole dominion and control of 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.
Appears in 3 contracts
Samples: Loans Pledge and Security Agreement (Altice USA, Inc.), Notes 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:
(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 satisfactory 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, including, but not limited toafter the occurrence and during the continuance of an Event of Default, the originals of all documentation with respect Collateral Agent may upon written notice to all Receivables and records of Grantor, 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) upon such Grantor shall deliver promptly to the Collateral Agent’s reasonable requestAgent a copy of each 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) other than in respect of obligations subject to good faith disputes, it such Grantor shall perform in all material respects all of its obligations with respect to the ReceivablesMaterial Contracts;
(iv5) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 ReceivableMaterial Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableMaterial Contract.
Appears in 3 contracts
Samples: Security Agreement (Viking Systems Inc), Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems 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 satisfactory 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 not limited tosubstantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, reflecting such new Investment Related Property. Notwithstanding the originals foregoing, it is understood and agreed that the security interest of all documentation with respect Collateral Agent shall attach to all Receivables Investment Related Property immediately upon any Grantor's acquisition of rights therein and records shall not 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuouslyexcept as provided in the next sentence, in form the event such Grantor receives any dividends, interest or distributions on any Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any Investment Related Property, then (y) such dividends, interest or distributions and manner reasonably satisfactory securities or other property shall be included in the definition of Collateral without further action and (z) such Grantor shall promptly take all steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to Collateral Agent, all Chattel Paper, Instruments ) and other evidence of Receivables (other than pending 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 deemed to hold such Grantor in the exact form receiveddividends, duly indorsed by such Grantor to Collateral Agent if requiredinterest, in a collateral account (the “Collateral Account”)distributions, 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 its commercially reasonable efforts each Grantor consents to keep the grant by each other Grantor of a Security Interest in full force and effect any Supporting Obligation or all Investment Related Property to Collateral Support relating to any ReceivableAgent.
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 thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 that could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business and so long as no generally conducted by it and, except as otherwise provided in subsection (iii) below, during the continuance of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence continuance of an Event of Default 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 delivery by the occurrence and during Trustee to the continuation Company of notice of an Event of Default, the Collateral Agent may: may (acting 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; (B) 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 (C) 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) 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 Account”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, 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) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 during the existence of following an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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:
(i1) it such Grantor shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) other than in the ordinary course of business and while no Event of Default exists, 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 on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by such Grantor on and so long prior to the date hereof, and except as no otherwise provided in subsection (5) below, following an Event of Default existsDefault, 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) each 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, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 Account”)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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Samples: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems 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 satisfactory proper books of record and complete records account in accordance with subsection 6.1 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 therewithCredit Agreement;
(ii) upon Collateral Agent’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) other than in respect of obligations subject to good 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 its business (as determined by the Grantor in good faith), and while no except as otherwise provided in subsection (iii) below, during the continuance of an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 Section 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, expense and in connection accordance with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisablecustomary practice in the information-technology security industry. Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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 (A1) 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; (B3) 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 (C4) 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”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableReceivable in excess 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 thatthat until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense 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[Reserved];
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used (A) in form and manner violation of any provision of this Agreement or (B) except as could not reasonably satisfactory be expected to Collateral Agentresult in a Material Impairment, all Chattel Paperunlawfully or in material violation of any applicable material statute, 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) other than in respect of obligations subject to good 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 amendchange its name, modifytype of organization, terminate jurisdiction of organization, Federal Taxpayer Identification Number or waive corporate structure in any provision 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 Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, of any Receivable 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 manner which could reasonably be expected Lien and (B) take all actions required by applicable law, to have a Material Adverse Effect on maintain the value of such Receivable as Collateral. Other than in continuous validity, perfection and the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension same or renewal better priority 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) 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables Collateral intended to be granted and any Supporting Obligation andagreed to hereby;
(iv) to the extent required by the Indenture, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (A) direct the Account Debtors under any Receivables to make payment of it shall pay promptly when due all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (B) 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 property and other payment items from time to time sent to taxes, assessments and governmental charges or deposited in such lockbox or other arrangement directly to Collateral Agent; levies imposed upon, and all claims (Cincluding claims for labor, materials and supplies) enforceagainst, at the expense of such GrantorCollateral, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and except to the same extent the validity thereof is being contested in good faith;
(v) it shall not sell, transfer or assign (by operation of law or otherwise) any 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect permitted under 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 unless and until all of the Equity Interests of and intercompany notes issued by Xxxxxxxxxxx & Co. Inc. are pledged as Collateral without regard to the limitation described in Section 1.04(c) or (d), Xxxxxxxxxxx & Co. Inc. shall use its commercially reasonable efforts remain a direct Wholly Owned Subsidiary of Viner Finance Inc. and the Company shall not permit such Equity Interests or intercompany loans to keep in full force and effect any Supporting Obligation or Collateral Support relating be subject to any Receivableother 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 that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, 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) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 during the existence of following an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 and agrees that:
(i1) it such Grantor shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) other than in the ordinary course of business and while no Event of Default exists, 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 on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by such Grantor on and so long prior to the date hereof, and except as no otherwise provided in subsection (5) below, following an Event of Default existsDefault, 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) each 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, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 Account”)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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 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 satisfactory expense, such complete and complete records of the Receivables, including, but not limited to, the originals of all documentation accurate Records with respect to all Receivables the Collateral owned or held by it or on its behalf as is consistent with its current practices and records of 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 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory with respect to Collateral Agent, all Chattel Paper, Instruments and other evidence any part 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) 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 than interest not expressly permitted by the Secured Transaction Documents, and in respect of obligations subject to good faith disputesfurtherance thereof, it shall perform not take, or permit to be taken, any action not otherwise expressly permitted by the Secured Transaction Documents that could impair the Security Interest or the priority thereof or any Secured Party’s rights in all material respects all of its obligations with respect or to the Receivables;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 than 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 make or permit to be made any transfer of such Collateral, and it shall remain at all times in possession of such Collateral and the direct owner, beneficially and of record, of the Pledged Equity Interests included in such Collateral, except that (A) Inventory may be sold in the ordinary course of business and while no (B) unless and until the Collateral Agent shall notify it that an Event of Default existsshall have occurred and be continuing and that, during the continuance thereof, it shall not amendsell, modifyconvey, terminate lease, assign, transfer 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. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) enforce, at the expense of such Grantor, collection otherwise 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 (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 (the “Collateral Account”), 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 ReceivableSecured 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 covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records At the reasonable request 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Collateral Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its then current practices and in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected continue to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor shall continue 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 cost and expense, 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 upon the occurrence and during the existence continuance of an Event of Default 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 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: (A) 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; Agent and (B) 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 (C) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 satisfactory and complete records of the Material Receivables, including, but not limited to, the originals of all material documentation with respect to all Receivables 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) upon Collateral Agent’s reasonable requestduring the continuance of an Event of Default, 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) other than in respect of obligations subject to good 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 Effect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 Material Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default and, following notice to Grantors, 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, pursuant to the Note Documents Collateral Agent (acting at the written direction of Majority Holders) may: (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 Collateral Agent; (B) 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 (C) 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 (25) 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 (the “Collateral Account”), 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 Material Receivable.
Appears in 2 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Akoustis Technologies, Inc.)
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:
(a) amend any of its Charter 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) it pursuant to and in accordance with the terms of Company Options outstanding on the Company Measurement Date or granted pursuant to clause (ii) 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 keep be amended to no longer include any provisions providing for acceleration of vesting upon a change of control, and maintain at any other form used by the Company shall be in a form reasonably acceptable to Parent;
(c) subdivide, cancel, consolidate or reclassify any shares of its capital stock, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of its capital stock or purchase, redeem or otherwise acquire any shares of its own cost and expense satisfactory and complete records 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 ReceivablesCompany); or (iii) make any material loans, including, but not limited advances or capital contributions to, or investments in, any other person (other than to Subsidiaries of the originals Company);
(e) except as otherwise expressly contemplated by this Agreement, (i) increase in any manner the compensation of all documentation (A) any employee who is not an officer of the Company or any Subsidiary (a “Non-Executive Employee”), except in the ordinary course of business consistent with past practice or (B) any of its 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 all Receivables and records Non-Executive Employees, in the ordinary course of all payments received and all credits granted 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 Receivablesdate hereof, all merchandise returned and all including any bonus, incentive, deferred compensation, share purchase, share option, share appreciation right, group insurance, severance pay, retirement or other dealings therewithbenefit 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;
(iif) upon Collateral Agent’s reasonable requestexcept as otherwise expressly contemplated by this Agreement, it shall xxxx conspicuouslyenter into, amend 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) other than in material respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) or terminate any Company Material Contracts other than in the ordinary course of business and while no Event of Default existsconsistent with past practice;
(g) sell, it shall not amendlease, modifylicense, terminate mortgage or waive any provision dispose 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. Other its properties or assets, other than (i) transactions in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivableconsistent with past practice, (xii) compromise or settle any disputesales of assets, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance fair market value thereof, (y) release, wholly which sales do not individually or partially, any Person liable for in the payment thereof, aggregate exceed $100,000 or (ziii) allow any credit as may be required or discount thereoncontemplated by this Agreement;
(vh) each Grantor 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 writing by the Company to the Parent without the prior written consent of Parent, 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 Receivableapplicable Tax laws which would, any Supporting Obligation individually or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A) 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; (B) 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 (C) 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 (2) 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 required, in a collateral account (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect do any of the Receivablesforegoing; provided, any Supporting Obligation or Collateral Support however, that nothing contained herein shall be received in trust for limit the benefit ability of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise Parent to exercise its rights 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 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 Receivablethis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (Advanced Power Technology Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no Event of Default existsotherwise provided in subsection (v) below, 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 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best commercial efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 Following the occurrence of and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records during the continuation of the Receivables, including, but not limited toan Event of Default, 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during time, upon concurrent written notice to the existence Grantor of an Event of Default its intention to do so, (i) to notify, or require any direct the Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation andObligation, in addition(ii) to direct, at any time following or request that the occurrence and during the continuation of an Event of DefaultGrantor direct, Collateral Agent may: (A) direct the 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; (B) 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 (Ciii) 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 (2) 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 Account”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 and agrees that:
(i) it each Grantor shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it each Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than except as otherwise consented to by the Administrative Agent at its sole option, with respect to each Receivable that is included in the ordinary course of business and while Borrowing Base: (A) no Event of Default exists, it 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 on the value of such Receivable as Collateral. Other ; and (B) other than in the ordinary course Ordinary Course of business Business as generally conducted by Borrowers on and so long prior to the date hereof, and except as otherwise provided in subsection (v) below, no Event of Default exists, such 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 subsection 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 Receivable, such Receivable or any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 2 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
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 satisfactory and complete records serving in a similar capacity on behalf of the Receivablesothers, 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;
or (ii) acting in the capacity of attorneys for the Company.
(f) The Escrow Agent shall be entitled to rely upon Collateral Agent’s reasonable requestthe accuracy, it shall xxxx conspicuouslyact in reliance upon the contents, in form and manner reasonably satisfactory to Collateral Agentassume the genuineness of any notice, all Chattel Paperinstruction, Instruments and certificate, signature, instrument or other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference document that is 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) other than in respect of obligations subject In the event Escrow Agent shall be uncertain as to good faith disputesits duties or rights hereunder or shall receive instructions, it shall perform in all material respects 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 than in instructions, claims or demands from another party, the ordinary course of business and while no Event of Default exists, 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 on the value court of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 Receivablecompetent 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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect material 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 so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 satisfactory and complete records of To 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) upon Collateral Agent’s reasonable requestextent 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) It will not, without the Administrative Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any Account, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (A) 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; the Administrative Agent and (B) 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 (C) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 ReceivableAccount.
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) 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 satisfactory 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, the originals of all documentation with respect to all Receivables and 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) upon Collateral Agent’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 each Grantor consents to the fact that Collateral Agent has grant by each other Grantor of a security interest therein;
(iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect Investment Related Property to the Receivables;
(iv) other than in the ordinary course of business and while no Event of Default existsCollateral Agent and, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (2) 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 (the “Collateral Account”), rights 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 Receivablepowers 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:
(i1) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (5) below, following an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to 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: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of the 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 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 satisfactory 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, the originals recording or filing of all documentation instruments and documents reasonably necessary to perfect and protect the perfection of the security interests granted hereby under Articles 8 or 9 of the Uniform 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 filings and to give all other notices as it shall reasonably deem necessary with respect to any of the Collateral, all Receivables and records 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 payments received and all credits granted on of the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory Secured Obligations. The Pledgor agrees to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to reimburse 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 therein;
on demand for any actual and reasonable expenses (iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations including reasonable attorneys' fees and expenses with respect to the Receivables;
(ivCollateral Agent, including reasonable allocated costs and expenses of in-house counsel and legal staff) other than in incurred by 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivableaction.
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:
(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 satisfactory 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, including, but not limited toafter the occurrence and during the continuance of an Event of Default, the originals of all documentation with respect Collateral Agent may upon written notice to all Receivables and records of the applicable Grantor, 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) upon such Grantor shall deliver promptly to the Collateral Agent’s reasonable requestAgent a copy of each 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) other than in respect of obligations subject to good faith disputes, it such Grantor shall perform in all material respects all of its obligations with respect to the ReceivablesMaterial Contracts;
(iv5) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 ReceivableMaterial Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableMaterial 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 that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, 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) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 during the existence of following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Priority Lien 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 Priority Lien Collateral Agent Trustee may: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of the Priority Lien Collateral Trustee, 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 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 satisfactory expense, such complete and complete records of the Receivables, including, but not limited to, the originals of all documentation accurate Records with respect to all Receivables the Collateral owned or held by it or on its behalf as is consistent with its current practices and records of 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 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory with respect to Collateral Agent, all Chattel Paper, Instruments and other evidence any part 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) 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 than interest not expressly permitted by the Secured Transaction Documents, and in respect of obligations subject to good faith disputesfurtherance thereof, it shall perform not take, or permit to be taken, any action not otherwise expressly permitted by the Secured Transaction Documents that is reasonably likely to impair the Security Interest or the priority thereof or any Secured Party’s rights in all material respects all of its obligations with respect or to the Receivables;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 than 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 make or permit to be made any transfer of such Collateral, and it shall remain at all times in possession of such Collateral and the direct owner, beneficially and of record, of the Pledged Equity Interests included in such Collateral, except that (A) Inventory may be sold in the ordinary course of business and while no (B) unless and until the Collateral Agent shall notify it that an Event of Default existsshall have occurred and be continuing and that, during the continuance thereof, it shall not amendsell, modifyconvey, terminate lease, assign, transfer 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. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) enforce, at the expense of such Grantor, collection otherwise 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 (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 (the “Collateral Account”), 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 ReceivableSecured 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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 (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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 Account”)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.
Appears in 2 contracts
Samples: Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.), First Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 that could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business and so long as no business, during the continuance of an Event of Default existsDefault, 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 Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding If so required by the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 “control of the Collateral Account”)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.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Education Management Corporation), Pledge and Security Agreement (AID Restaurant, Inc.)
Covenants and Agreements. Each Grantor Debtor 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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Debtor shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Debtor's name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or establish any trade names unless it shall have (a) notified Secured Party in writing, by executing and delivering to Secured Party a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all material respects 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, chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as Secured Party may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity and perfection of its obligations with respect Secured Party's security interest in the Collateral intended to the Receivablesbe granted and agreed to hereby;
(iv) other than in the ordinary course of business and while no Event of Default exists, 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 to the extent the validity thereof is being contested in good faith; provided, such Debtor shall in any event pay such taxes, assessments, charges, levies or claims not amend, modify, terminate or waive any provision later than five (5) days prior to the date of any Receivable in proposed sale under any manner which could reasonably be expected to have a Material Adverse Effect on the value judgment, writ or warrant of attachment entered or filed against such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant Debtor 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) each Grantor shall continue to collect all amounts due upon such Debtor 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) enforce, at the expense officer of such GrantorDebtor obtaining knowledge thereof, collection it shall promptly notify Secured Party in writing of any such Receivables event that may materially and to adjust, settle adversely affect the value of the Collateral (other than Pledged Equity Interests) or compromise the amount or payment any portion thereof, in the same manner and ability of any Debtor or Secured Party 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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect dispose of the Receivables, 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 Secured Party in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany portion thereof; and
(vi) it shall use its commercially reasonable efforts to keep deliver to Secured Party landlord consents, to the extent it occupies and has business activities on any premises as a lessee under a lease, executed by the landlord in full force respect of such lease the effect of which would subordinate the claims of such landlord to the Liens created under this Agreement and effect any Supporting Obligation or Collateral Support relating enable Secured Party to any Receivableaccess such premises without delay for the purpose of enforcing such Liens.
Appears in 1 contract
Samples: Pledge and Security Agreement (Majestic Investor Capital Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete complete, in all material respects, 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) upon Collateral Agent’s reasonable request, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory satisfacxxxx to Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records Records, with an appropriate reference to the fact that Collateral Agent has a security interest therein;
(iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables owned by such Grantor;
(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 Effect on materially adversely affect the value of such Receivable the Receivables as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, upon the occurrence and during the continuance of an Event of Default existsDefault, such Grantor shall not (w) grant any extension or renewal of the time of payment of any ReceivableReceivable owned by such Grantor, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable owned by such Grantor 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 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 expenseexpense and consistent with past practices, and in connection with such collections and exercise, such Grantor shall take such action as such Grantor or Collateral Agent may deem necessary or advisablenecessary. Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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 In addition, at any time following the occurrence and during the continuation continuance of an Event of Default, Collateral Agent may: (A1) direct the Account Debtors under any Receivables owned by such Grantor to make payment of all amounts due or to become due to such Grantor thereunder directly to Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
Covenants and Agreements. Each U.S. Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records At the reasonable request 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Collateral Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (Ai) 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; (B) 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 (Cii) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially 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 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 Concentration Account.
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 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments (other than checks received for deposit) 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) other than in respect of obligations subject to good 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, (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 such Receivable as Collateral. Other Collateral and (B) other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any 18 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: (A1) 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; (B2) 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 (C3) 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 Securities Account or Deposit Account maintained under the "control" (within the “meaning of Section 9-106 or 9-104 of the UCC, respectively) of the Collateral Account”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Master Pledge and Security Agreement (Focal Communications Corp)
Covenants and Agreements. Each The Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records At the reasonable request 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) upon Collateral Agent’s reasonable request, it shall xxxx mxxx 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) It will not, without the Collateral Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its then current practices and in accordance with such practices reasonably believed by the Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by the Grantor in accordance with its good faith business judgment, it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected continue to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor shall continue 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 cost and expense, 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 upon the occurrence and during the existence continuance of an Event of Default to notify, or require any the Grantor to notify, any Account Debtor with respect to any such Receivable, Supporting Obligation or Collateral Support of the Collateral Agent’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: (A) direct the such Account Debtors under any Receivables Debtor to make payment of all amounts due or to become due to such the Grantor thereunder directly to the Collateral Agent; Agent and (B) 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 (C) enforce, at the cost and expense of such the 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 the Grantor might would be able to have done. If the Collateral Agent notifies any the 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 the Grantor shall not be forthwith (and in commingled with 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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 the 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Security Agreement (Loton, Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and substantially complete records of any material portion of the ReceivablesAccounts included in the Collateral, including, but not limited to, the originals originals, if applicable, of all documentation with respect to all Receivables 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its material obligations with respect to its Accounts, to the Receivablesextent deemed prudent business conduct as determined by such Grantor in its reasonable business discretion;
(iviii) other than in the ordinary course of business as generally conducted by it, and while no except as otherwise provided in subsection (v) below, following an Event of Default exists, it shall not amend, modify, terminate that has occurred and is continuing and after written notice from Administrative Agent or waive if Administrative Agent has otherwise exercised any provision rights or remedies pursuant to Section 4.3(b)(v) below or Section 7 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. Other than in the ordinary course of business and so long as no Event of Default existsthis 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 ReceivableAccount, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral the Administrative Agent’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,: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of 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 ReceivableAccount, to the extent 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 thatthat until the payment in full of the Secured Obligations:
(i) it shall keep and maintain during the continuance of an Event of Default, in addition to any rights under Section 3.03, the Collateral Agent may (acting at its own cost and expense satisfactory and complete records the written direction of Holders owning a majority of the Receivablesaggregate outstanding principal amount of the Notes), includingsubject to the Intercreditor Agreement (if applicable), but not limited toat any time notify, or require any Grantor to so notify, the originals counterparty on any Material Contract of all documentation with respect the security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may (acting at the written direction of Holders owning a majority of the aggregate outstanding principal amount of the Notes) upon written notice to all Receivables and records of the applicable Grantor, 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;
(ii) upon Collateral Agent’s reasonable requestafter the occurrence and during the continuance of an Event of Default, it each Grantor shall xxxx conspicuously, in form and manner reasonably satisfactory deliver promptly to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein)a copy of each material demand, as well as the Receivables Records with an appropriate reference notice or document received by it relating in any way to the fact that Collateral Agent has a security interest thereinany Material Contract;
(iii) other than in respect of obligations subject to good 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 Material Contracts except where 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 on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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 thereonEffect;
(viv) each Grantor it shall continue to collect all amounts due or to become due to such Grantor under the Receivables in its reasonable business judgment and any Supporting Obligation and diligently consistent with its past practice exercise each material right it may have under any ReceivableMaterial Contract, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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, the Collateral Agent may: (Aacting pursuant to written direction received under the Indenture) direct the Account Debtors under any Receivables to make payment of all amounts due may deem necessary or to become due to such Grantor thereunder directly to Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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; andadvisable;
(viv) it shall use its commercially reasonable efforts business judgment in deciding whether or not to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableMaterial Contract.
Appears in 1 contract
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 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Administrative Agent’s prior written consent (which, so long as no Default has occurred and is continuing, consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (A) 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; the Administrative Agent and (B) 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 (C) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially 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 a 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 satisfactory 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, and the recording or filing of all instruments and documents reasonably necessary to perfect and protect the perfection of the security interests granted hereby under Articles 8 or 9 of the Uniform Commercial Code in effect in any applicable jurisdiction. In connection therewith, the originals of 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 documentation filings and to give all other notices as it shall reasonably deem necessary with respect to any of the Collateral, all Receivables and records 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 payments received and all credits granted on of the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory Secured Obligations. The Pledgor agrees to Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to reimburse 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 therein;
on demand for any actual and reasonable expenses (iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations including reasonable attorneys' fees and expenses with respect to the Receivables;
(ivCollateral Agent, including reasonable allocated costs and expenses of in-house counsel and legal staff) other than in incurred by 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 Collateral Agent's security interest in and to the Collateral against all claims and demands of all Persons at any time during claiming the existence same or any interest therein adverse to the interests of an Event of Default 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.
(c) The Pledgor shall, at any time following all times, maintain or cause to be maintained accurate books and records with respect to the occurrence Collateral, and during shall furnish to the continuation of an Event of Default, Collateral Agent may: (A) 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; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 Receivableexpressly 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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral and it shall defend the Collateral against all Receivables and records of 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) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of 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 being 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 Collateral Agentany of such Pledgor’s reasonable requestofficers 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) other than in respect without the prior written consent of obligations subject to good faith disputesthe Bank, it shall perform in all material respects 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) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 Receivablesecurity 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 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) upon Collateral Agent’s reasonable request, 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 (or its agent or designee) 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) other than in respect of obligations subject to good faith disputes, 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) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 during the existence of following an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Priority Lien 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 Priority Lien Collateral Agent Trustee may: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of the Priority Lien Collateral Trustee, 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 satisfactory and complete records records, in all material respects, 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 following the occurrence and during the existence continuance of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 (the “Collateral Account”), 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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any 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 such 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 that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records of the ReceivablesReceivables in accordance with its business practice, including, but not limited to, the originals or certified copies of all material documentation with respect to all Receivables and records of all material payments received and all material credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx use commercially reasonable efforts to 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) other than in respect of obligations subject to good 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 as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below and except as otherwise permitted under the Credit Agreement, following an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 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 during the existence of following an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation Receivables in accordance 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 therewithGAAP;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all material Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any as delivered to the Collateral Agent as provided herein), as well as ) in excess of $100,000 individually or $500,000 in the Receivables Records aggregate with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) other than in respect of obligations subject to good 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 would reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business or in compliance with reasonable commercial practices as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 or constitutes a Permitted Sale, each Grantor shall continue to collect all material 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 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 At any time following the occurrence and during the existence continuance of an Event of Default Default, the Collateral Agent may, following ten (10) days’ prior written notice to the Borrower: (1) 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, Collateral Agent may: (A2) 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; (B3) notify, or require any Grantor to notify, each Person maintaining a lockbox account 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 account or other arrangement directly to the Collateral Agent; and (C4) 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 (23) 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”)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 material Receivable.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation or Records thereof 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 excess of $250,000 individually or $1,000,000 in the aggregate with other Receivables) in any manner which could reasonably be expected to have a Material Adverse Effect material 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 so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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, upon the occurrence and during the continuation of any Event of Default, the Collateral Agent shall have the right at any time during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Medical Systems Holdings Inc)
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 satisfactory and complete records continue to constitute not less than 66% of the Receivables, including, but not limited to, total beneficial interests in the originals of all documentation with respect to all Receivables Company and records of all payments received the Stock Certificates shall be in certificated form; and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Pledgor shall defend the Collateral Agent’s reasonable requestagainst 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, it subject to the rights, title and interest of the Administrative Agent pursuant to the Security Agreement and the First Equitable Mortgage.
(b) Pledgor shall xxxx conspicuouslynot directly or indirectly further assign, pledge, hypothecate, transfer, exchange, grant any option or security interest in form and manner reasonably satisfactory with respect to, or otherwise dispose of or encumber, 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) other than in respect of obligations subject extent failure to good 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 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 material adverse affect on the value Collateral or Lender's security interest therein; Pledgor may contest any such taxes, 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 give Lender notice promptly after any officer of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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 Pledgor with executive responsibilities with respect to any Receivable for less than the total unpaid balance Pledgor obtains actual knowledge thereof, (yi) release, wholly of the occurrence of any breach by Pledgor of its obligations under this Pledge and/or the Second Equitable Mortgage and (ii) of any action or partially, any Person liable for the payment thereofproceeding to which Pledgor is a party, or (z) allow any credit affecting Pledgor, except to the extent failure to do so could not reasonably be expected to have a material adverse affect on Pledgor or discount thereon;the Collateral or Lender's security interest therein.
(ve) each Grantor Pledgor shall continue deliver 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 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 during the existence of an Event of Default 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 Lender after the occurrence and during the continuation continuance of an any Event of DefaultDefault or 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, Collateral Agent may: (A) direct the Account Debtors interest and other sums due or paid under any Receivables loans by Pledgor to make payment Company. Pledgor shall promptly deliver to Lender all notes or other evidence of indebtedness with respect to such loans.
(f) Pledgor shall not permit any Voluntary Bankruptcy Event to occur without the express prior written consent of Lender.
(g) 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 provision in its or 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 such obligation if (x) the Pledgor or the Company, 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 form and substance reasonably satisfactory to Lender) its organizational documents to similarly so provide and to preclude any such action or inaction having such effect, and to obtain all necessary 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 Company is and remains a special purpose entity (the purpose and activities of which shall be limited to owning the stock of PowerTel).
(i) Pledgor shall provide twenty (20) days prior notice to Lender if at any time after the date hereof it intends (i) be incorporated in any jurisdiction of Australia, (ii) carry on business in Australia (as determined under Australian law) or (iii) for Australian tax purposes, become a resident of Australia or a non-resident of Australia carrying on business at or through a permanent establishment in Australia.
(j) The acquisition of all amounts due or to become due to such Grantor thereunder directly to any portion the Collateral Agent; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any ReceivableTakeover Act 1975.
Appears in 1 contract
Covenants and Agreements. Each The Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, it shall xxxx not evidence Receivables as Chattel Paper or Instruments except with the prior consent of the Secured Party, and it shall mxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agentthe Secured Party, all Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any delivered to Collateral Agent as provided herein), as well as the Receivables Records hereafter created with an appropriate reference to the fact that Collateral Agent the Secured Party has a security interest therein;
(iii) other than except as otherwise provided in respect of obligations subject to good faith disputesthis subsection, 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor shall continue to collect all amounts due or to become due to such the 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 in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableObligation. Notwithstanding anything in the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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 the Secured Party may: (Ay) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such the Grantor thereunder directly to Collateral Agentthe Secured Party; and (Bz) notify, or require any the Grantor to notify, each Person (if any) 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 (C) 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 doneSecured Party. If Collateral Agent following the occurrence and continuance of an Event of Default the Secured Party 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 thereafter in the exact form received, duly indorsed by such the Grantor to Collateral Agent the Secured Party if required, in a collateral account (the “Collateral Account”)Account maintained under the sole dominion and control of the Secured Party, 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 the Secured Party 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 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.
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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in all material respects all 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) other than if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the ordinary course use of business and while no Event of Default existsany 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 paid in the chronological order such Grantor acquired 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 to the extent the validity thereof is being contested in good faith; provided, such Grantor shall in any event pay such 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 or any of the Collateral 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 in writing of any event that may have a Material Adverse Effect on the value ability of such Receivable as Collateral. Other than in any Grantor or the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension or renewal Collateral Agent to dispose 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 portion thereof, or (z) allow the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany portion thereof;
(vvii) each Grantor it shall continue to collect all amounts due not take or to become due to such Grantor under permit any action which could impair 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest 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: (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 Collateral Agent; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 ReceivableFinancing Agreement.
Appears in 1 contract
Samples: Financing Agreement (Model N, Inc.)
Covenants and Agreements. Each Grantor hereby 5.1 Conduct of the Business Prior to Closing; Access. The Company covenants as follows:
(a) Between the date hereof and agrees thatthe Closing, except as contemplated by this Agreement or as described in either Section 3.7 or Section 5.1 of the Disclosure Schedule, or except with the consent of Purchaser (which consent shall not be unreasonably withheld), the Company will operate the Business in the ordinary course of business consistent with past practice and shall use commercially reasonable efforts to (1) preserve intact the Business and preserve the Business's relationships with customers, suppliers, licensees, licensors, the networks with whom the Stations are affiliated and others having business dealings with the Stations, (2) maintain the Business's inventory of supplies, parts and other materials and keep its books of account, records and files, in each case in the ordinary course of business consistent with past practice, (3) maintain the material items of Real Property, Leased Property and Equipment substantially in their present condition, ordinary wear and tear excepted, (4) pay or discharge all cash and barter obligations in the ordinary course of business, (5) bring current as of the Closing Date all payments due and payable under Program Contracts in accordance with their terms as in effect on the date hereof (with respect to Program Contracts existing as of the date hereof) or on the date originally entered into (with respect to Program Contracts entered into after the date hereof) and (6) maintain its corporate existence. Without limiting the generality of the foregoing, between the date hereof and the Closing, except as contemplated by this Agreement or as described in either Section 3.7 or Section 5.1 of the Disclosure Schedule, or except with the consent of Purchaser (which consent shall not be unreasonably withheld, except in the case of any consent relating to the entering into of any Program Contract providing for payments in excess of $30,000 or having a term greater than one year (other than any Program Contract that will be fully satisfied, discharged and performed prior to the Closing), in which case Purchaser may grant or withhold its consent in its absolute discretion (and the parties hereto further agree that no such consent unreasonably withheld shall be taken into account in any determination of whether a Material Adverse Effect has occurred), and any consent shall be deemed given unless withheld in writing no later than four Business Days after Purchaser's receipt of a written request for such consent), the Company will not with respect to the Business:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records create, assume or subject any of the Receivablesassets of the Business to any Encumbrance, including, but not limited to, other than Permitted Exceptions and Encumbrances that will be released at or prior 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 therewithClosing;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, make any material changes in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence the operations 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 thereinBusiness;
(iii) other than than, in respect of obligations subject to good faith disputeseach case, 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 consistent with past practice, sell, transfer, lease, sublease, license or otherwise dispose of any material assets of the Business, other than the sale of obsolete Equipment that has been or is replaced with Equipment of like kind;
(iv) (A) grant any increase, or announce any increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company to any of the officers or key employees of the Business, including, without limitation, any increase or change pursuant to any Employee Benefit Plan, or (B) establish or increase or promise to increase or accelerate the payment or vesting of any benefits under any Employee Benefit Plan with respect to officers or employees of the Business, in the case of either (A) or (B) except (I) as required by Law, (II) that involve only increases consistent with the past practices of the Company but in no event more than 5%, (III) as required under any existing agreement or arrangement, (IV) that involve increases related to promotions to the extent such increases result in the compensation and while no Event benefits of Default existsthe relevant employee being consistent with the compensation and benefits provided to the holder of such position in the past or (V) that relate to the supplemental executive retirement plans identified in Section 3.14 of the Disclosure Schedule;
(v) make any change in any method of accounting or accounting practice or policy used by the Company, it shall other than as required by law or under GAAP;
(vi) fail to maintain in full force and effect all of its existing casualty, liability or other insurance through the Closing in amounts at least equal to those in effect on the date hereof;
(vii) make any capital expenditures in excess of $500,000 in the aggregate that are not amendcontemplated in the capital improvements budgeted for 1998;
(viii) (A) amend the payment terms of any Program Contract to provide that payments that would otherwise be made prior to the Closing are made after the Closing or (B) acquire, enter into, modify, terminate change or waive extend the term of (x) any Program Contract providing for payments in excess of $10,000 or with a term greater than one year or (y) Program Contracts not subject to clause (x) that in the aggregate provide for payments in excess of $200,000;
(ix) acquire, enter into, modify, change or extend the term of any Material Contract, provided that this clause (ix) will not apply to the acquisition or entering into of any new Material Contract not otherwise subject to clauses (i) to (viii) or clauses (x) to (xvi) hereof with respect to which all Liabilities of the Company thereunder will be fully satisfied, discharged and performed prior to the Closing with no adverse effect on Purchaser;
(x) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any material Action, material Liabilities or any other material claims or material rights;
(xi) enter into any new agreement, contract, commitment or arrangement with any Affiliate of the Company that will be binding upon Purchaser, the Assets or the Stations after the Closing;
(xii) apply to the FCC for any construction permit that would adversely affect the Stations' present operations, or make any material change in the Stations' buildings, leasehold improvements, or fixtures;
(xiii) except with respect to promotion during ratings sweep periods (which shall not be subject to this clause (xiii)), enter into any trade, barter or similar agreements (other than Program Contracts) for the sale of advertising time that would be binding on the Stations after the Closing for any property or services in lieu of or in addition to cash that requires the provision of any Receivable broadcast time having a value that exceeds $10,000 in any manner individual agreement or $200,000 in the aggregate;
(xiv) take any action, or refrain from taking any action, that would constitute a material breach of, constitute a default (or event which could reasonably be expected with the giving of notice, or lapse of time or both, would become a default) under, or give to have a others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, any Material Adverse Effect on the value of such Receivable as Collateral. Other than Contract;
(xv) enter into or renew any time sales agreement except in the ordinary course of business for a term not exceeding 12 months; or
(xvi) enter into any agreement, contract, commitment or arrangement to do any of the foregoing.
(b) Pending the Closing, the Company shall:
(1) Give to Purchaser and so long its representatives reasonable access during normal business hours to all of the employees, properties, books and records of the Company and furnish Purchaser and its representatives with such information concerning the Company as no Event Purchaser may reasonably require, including such access and cooperation as may be necessary to allow Purchaser and its representatives to interview the employees, to examine the books and records of Default existsthe Company, such Grantor and to inspect the Real Property and Equipment (which right of access shall not be exercised in any way which would unreasonably interfere with the normal operations, business or activities of the Company);
(w2) grant Furnish to Purchaser within 20 days after the end of each month ending between the date of this Agreement and the Closing an unaudited statement of income and expense and a balance sheet for each Station for the month just ended; and
(3) From time to time, furnish to Purchaser such additional information (financial or otherwise) concerning the Company as Purchaser may reasonably request (which right to request information shall not be exercised in any extension way which would unreasonably interfere with the normal operations, business or activities of the Company).
(c) Pending the Closing, the Company will maintain the validity of the FCC Licenses and comply with all requirements and the rules and regulations of the FCC in the operation of the Stations and will prepare and timely file with the FCC and diligently prosecute any necessary applications for renewal of the time of payment FCC Licenses and for construction permit applications for digital television channels. The Company will deliver to Purchaser, within ten Business Days after delivery or receipt, copies of any Receivablereports, (x) compromise applications or settle any dispute, claim communications to or legal proceeding with respect from the FCC or its staff related to any Receivable for less than the total unpaid balance thereof, (y) release, wholly Stations which are delivered or partially, any Person liable for received between the payment thereof, or (z) allow any credit or discount thereon;date of this Agreement and the Closing Date.
(vd) each Grantor shall continue to collect all amounts due or to become due to such Grantor under Pending the Receivables Closing, the Company will maintain the Business's promotional activities 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest expenditures in the Receivables and any Supporting Obligation and, aggregate in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (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 Collateral Agent; (B) 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 (C) 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 material respects in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (Company's budget and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor will use its reasonable best efforts to Collateral Agent if required, in a collateral account (the “Collateral Account”), and until so turned over, maintain 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 affiliation agreements with television networks 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 ReceivableStations.
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 satisfactory and complete records the request of the Receivables, including, but not limited to, Collateral Agent after the originals occurrence and during the continuation of all documentation with respect to all Receivables and records an Event of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable requestDefault, 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;
(iii) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(ivii) other than in the ordinary course of business as generally conducted by it, and while no except as otherwise provided in subsection (iii) below or the Credit Agreement, following the occurrence and during the continuation of an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 subsection 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 Receivableof its Receivables, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense, 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 following the occurrence and during the existence continuation of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 (Deposit Account designated by the “Collateral Account”)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 Receivableof its material Receivables.
Appears in 1 contract
Samples: Pledge and Security Agreement (Covanta Holding Corp)
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 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 that could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by it, and so long except as no otherwise provided in subsection (v) below, during the continuance of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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, subject to the provisions of the Intercreditor Agreement, the Collateral Agent, may deem necessary or advisable. Notwithstanding the foregoing, subject to the provisions of the Intercreditor Agreement, the Collateral Agent shall have the right at any time following the occurrence and during the existence continuation of an Event of Default 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, subject to the Intercreditor Agreement, the Collateral Agent may: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
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 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) upon at the request of the Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(iA) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall (A) defend the Collateral against all Receivables Persons at any time claiming any interest therein and records (B) file such financing or continuation statements, or amendments thereto, as may be requested by the Collateral Agent to preserve the perfection of all payments received and all credits the security interests granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’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 hereunder (other than any delivered security interests in Collateral constituting fixtures);
(B) it shall not 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;
(C) it shall not change Grantor's name or jurisdiction of organization unless it shall have (a) notified Collateral Agent in writing, by executing and delivering to Collateral Agent as provided herein)a completed Security Agreement Supplement, as well as substantially in the Receivables Records form of Exhibit A attached hereto, together with an appropriate reference a supplement to Schedule 4.1, at 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 fact that continuous validity and perfection of Collateral Agent has a Agent's security interest thereinin the Collateral intended to be granted hereby;
(iiiD) 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 of the Collateral other than in respect a Permitted Lien;
(E) upon such Grantor or any officer of obligations subject to good faith disputessuch Grantor obtaining knowledge thereof, it shall perform promptly notify Collateral Agent in all material respects all writing of its obligations with respect to the Receivables;levy of any legal process against the Collateral or any portion thereof; and
(ivF) other than in the ordinary course of business and while no Event of Default exists, it shall not amend(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), modify, terminate or waive report to Collateral Agent any provision new individual item 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. Other than in the ordinary course of business and so long as no Event of Default exists, Collateral acquired by such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, during such quarter that (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereofis Material, (y) releaseis not Money, wholly Letter-of-Credit Rights or partiallythe subject of the provisions of Section 4.4, any Person liable for the payment thereof, or and (z) allow any credit or discount thereon;
was not previously disclosed hereunder, (vii) each Grantor shall continue to collect all amounts due or to become due to provide such Grantor under the Receivables other information 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 take such other actions in connection with such collections and exercise, such Grantor shall take such action new Collateral as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent (at the written direction of the Acting Secured Parties) may reasonably request, and (iii) to the extent 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 such 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 the right at any time during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest in the Receivables attached 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 Receivableperfected.
Appears in 1 contract
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 satisfactory and complete records be exercisable by each Lender, with the actions of Mortgage Lender having priority over the Receivables, including, but not limited to, the originals actions of all documentation with respect any Mezzanine Lender if such parties seek to all Receivables and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;take inconsistent actions.
(iib) upon Collateral AgentAny mortgage, deed of trust, security deed or other instrument from time to time encumbering Landlord’s reasonable request, it 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) 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 and while no Event of Default existsLandlord, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default to notifyincur indebtedness secured by, or require any Grantor and to notify, any Account Debtor of Collateral Agentsubject Xxxxxx’s security 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: (Aholder(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; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 ReceivableLender may reasonably request.
Appears in 1 contract
Covenants and Agreements. Each Grantor The Borrower hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records At the request of the Receivables, including, but not limited toLender, 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Lender’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its current practices or in accordance with such practices reasonably believed by the Borrower to be prudent.
(iii) Except as otherwise provided in this Section, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 Agentthe 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: (A) 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; the Lender and (B) 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 (C) 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 (2) 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 (the “Collateral Account”), 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 its commercially reasonable efforts direct each Account Debtor to keep in full force and effect any Supporting Obligation or Collateral Support relating make payment on each Receivable to any Receivablean account designated by the Lender.
Appears in 1 contract
Samples: Pledge and Security Agreement (Uranium Resources Inc /De/)
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 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) upon Collateral Agent’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 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than collect in the ordinary course of business and while no Event of Default existsconsistent with past practice, it shall not amendat its own expense, 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. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation Obligation. Following the occurrence of and diligently exercise each material right it may have under any Receivableduring the continuation of an Event of Default, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence time, upon concurrent written notice to each Grantor of an Event of Default its intention to do so, (i) to notify, or and/or require any such Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation andObligation, in addition(ii) to direct, at any time following the occurrence and during the continuation of an Event of Defaultand/or cause such Grantor to direct, Collateral Agent may: (A) direct the 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; (B) 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 (Ciii) 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 Account”)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.
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 satisfactory and complete in all material respects 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iviii) 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 other than in any manner which could reasonably be expected to have a Material Adverse Effect on the value ordinary course of such Receivable as Collateralbusiness. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, during the continuance of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, expense and in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableits ordinary 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 during the existence of an Event of Default to notify, or require (in each case, in writing) 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 and the occurrence and during the continuation of an Event of Default, Collateral Agent may: (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; , (B) 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 (C) 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 (25) 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”)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.
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 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 create any other dealings therewith;
(ii) upon Collateral Agent’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) other than in respect of obligations in, mortgage, or otherwise encumber or assign the Account or any part thereof, or permit the same to be or become subject to good faith disputesany lien, it shall perform in all material respects all attachment, execution, sequestration, other legal or equitable process, or any encumbrance of its obligations any kind or character, except the lien herein created, or (h) make or allow to be made any withdrawals from the Account.Should any funds payable 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 Account be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsreceived by Assignor, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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.shall
Appears in 1 contract
Samples: Loan Agreement (Ultrak Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interests granted hereunder, it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and it shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuouslynot produce, use or permit any Collateral to be used in form and manner reasonably satisfactory to Collateral Agentany material respect unlawfully or in material violation of any provision 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Grantor's name, identity, corporate structure or jurisdiction of organization unless it shall have (a) notified the Collateral Agent in all material respects all of its obligations with respect 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 days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, jurisdiction of organization 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 priority of the Collateral Agent's security interest in the Collateral intended to be granted hereby;
(iv) other than in the ordinary course of business and while no Event of Default exists, 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 any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business good faith and so long as no Event of Default existsby appropriate proceedings diligently conducted; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not (w) grant later than five days prior to the date of any extension proposed sale under any judgment, writ or renewal warrant of attachment entered or filed against such Grantor or any 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 and such Grantor obtaining knowledge thereof, it shall not adjust, settle or compromise promptly notify the amount or payment Collateral Agent in writing of any Receivableevent that may materially and adversely affect the value of the Collateral, the ability of the Collateral Agent to dispose of the Collateral or release wholly or partly any Account Debtor or obligor portion thereof, or allow the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereon; andany portion thereof;
(vi) it shall use its commercially reasonable efforts to keep not take or permit any action which could impair the Collateral Agent's rights in full force and effect the Collateral; and
(vii) it shall not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivableexcept as permitted under the 2003 Credit Agreement.
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 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iviii) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) release, wholly or partially, any Person liable for the payment of any Receivable, (y) other than as expressly permitted by Section 4.3(b)(v), 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) other than as expressly permitted by Section 4.3(b)(v), allow any credit or discount thereonon any Receivable;
(iv) it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Agent has a security interest therein;
(v) each Grantor with respect to Accounts: (A) it shall continue not re-date any invoice, claim form or sale relating to collect all amounts due or any Account; (B) if it becomes aware of any matter that is reasonably likely to become due to materially adversely affect any Material Account Debtor, including information regarding 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 in connection with such collections and exerciseMaterial Account Debtor's creditworthiness, such Grantor shall take promptly so advise the Agent; (C) it shall not accept any note, warrant or other instrument (except a check or other instrument for the immediate payment of money) with respect to any Account without the written consent of the Agent (it being understood that if the Agent consents to the acceptance of any such action note, warrant or other instrument, it shall be considered Exhibit E-14 as evidence of the Account and not payment thereof, and such Grantor may deem necessary shall promptly deliver such note, warrant or advisable. Notwithstanding instrument to the foregoingAgent appropriately endorsed and regardless of the form of presentment, Collateral demand, notice of dishonor, protest, and notice of protest with respect thereto, the Grantors shall remain liable thereon until such note, warrant or instrument is paid in full); (D) it shall notify the Agent promptly of all disputes and claims (other than as to discounts required by contract or agreement made in the ordinary course of business and corrections of billing errors in the ordinary course of business) with any Account Debtor, involving in excess of fifty thousand dollars ($50,000) for any single dispute or claim and in excess of one hundred thousand dollars ($100,000) for all such disputes and claims, whether any such Account Debtor is acting in its capacity as an Account Debtor or in its individual capacity; (E) it shall have not grant any discount, credit or allowance with respect to any Account to any Account Debtor without the right at consent of the Agent, except for: (i) discounts required by contract or agreement made in the ordinary course of business and corrections of billing errors in the ordinary course of business; and (ii) any time other discount which does not exceed fifty thousand dollars ($50,000), provided that the aggregate amount of discounts permitted pursuant to this clause (ii) during any calendar year with respect to any single Account Debtor shall not exceed one hundred thousand dollars ($100,000); (F) if an Account Debtor returns any inventory to such Grantor when no Event of Default exists, then such Grantor shall promptly determine the existence reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount; provided that such Grantor shall immediately report to the Agent in the event that the aggregate amount of such returns exceed one hundred thousand dollars ($100,000) during any year with respect to any single Account Debtor (which report shall indicate the reasons for the returns and the locations and condition of the returned inventory; and (G) if an Account Debtor returns any inventory to such Grantor when an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest exists and such inventory is returned in a condition that makes it unfit for resale in the Receivables and any Supporting Obligation andordinary course of business, in addition, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent maysuch Grantor shall: (Ai) direct hold such returned inventory in trust for 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; (Bii) notify, or require any Grantor segregate all such returned inventory from all of its other Property; (iii) dispose of such returned inventory solely according 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 written instructions of the Agent; and (Civ) enforcenot issue any credits or allowances with respect thereto without the prior written consent of the Required Lenders. All returned inventory shall remain subject to the Agent's security interest. Whenever any inventory is returned for which an Account had been created, at such Account shall be credited to the expense extent of such Grantorreturned Inventory, collection of any such Receivables and to adjust, settle or compromise with the amount or payment thereof, credit reported in the same manner and to the same extent as such Grantor might have done. If Weekly 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 (the “Collateral Account”), 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 thereonCertificate; and
(vi) it shall use its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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 best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory 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, the originals of all documentation and in any event in conformity 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 therewithGAAP;
(ii) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 existsbusiness, 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 Receivable as Collateral. Other than in the ordinary course of business business, and so long except as no otherwise provided in subsection (v) below, after the occurrence and during the continuation of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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; 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: (A1) 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; (B2) 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 (C3) 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 (21) 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 (Securities Account or Deposit Account subject to a control agreement in the “form of Exhibit C or Exhibit D-1, or such other control agreement in form and substance reasonably satisfactory to the Term Collateral Account”)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 its commercially reasonable 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 in respect of which the Account 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 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) upon Collateral Agent’s reasonable requestit shall promptly transfer or cause to be transferred all funds arising from the collection of all 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(ivv) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to notify (and if so, such Grantor shall so 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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.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 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Paper and Instruments and other evidence of evidencing 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable its Receivables, taken as a whole, as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 in connection with such collections and exercise, such Grantor shall take such action as such Grantor may deem necessary or advisableits reasonable business judgment. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time during the existence of an Event of Default 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 additionright, at any time following the occurrence and during the continuation of an Event of Default, Collateral Agent mayto: (A1) 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 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; (B2) 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 (C3) 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”)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.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mortons Restaurant Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Administrative Agent’s prior written consent (which, so long as no Default has occurred and is continuing, consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its current practices or in accordance with such practices reasonably believed by such Grantor to be prudent.
(iii) Except as otherwise provided in this Section, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (A) 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; the Administrative Agent and (B) 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 (C) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially 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 a Controlled Account.
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 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) upon if requested, by Collateral Agent’s reasonable request, it shall xxxx mark conspicuously, in form and manner reasonably satisfactory to xx xhe 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, upon the occurrence and during the continuation of an Event of Default existsDefault, 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) it shall (a) maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Administrative Agent, (b) obtain an agreement (in form and substance satisfactory to Administrative Agent) from each Grantor shall continue lockbox servicer and Dominion Account bank, establishing Administrative Agent's control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to collect a Dominion Account and, if such Dominion Account is not maintained with Bank of America, requiring immediate transfer of all amounts due or funds in the Dominion Account 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 expensea Dominion Account maintained with Bank of America, and waiving offset rights of such servicer or bank against any funds in connection with such collections and exercisethe lockbox or Dominion Account, such Grantor shall take such action as such Grantor may deem necessary or advisable. Notwithstanding the foregoingexcept offset rights for customary administrative charges; provided that none of Administrative Agent, Collateral Agent and Lenders assume any responsibility to Grantors for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any check, draft or other item of payment accepted by any bank. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent shall have the right at any time during the existence of an Event of Default 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 upon the occurrence and during the continuation of an Event of Default, Collateral the Administrative Agent may, subject to the Intercreditor Agreement: (A1) 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; a Dominion Account (B) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement relating 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 Agenta Dominion Account); and (C2) 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 Any payments of Receivables received by such any Grantor shall be forthwith (and in any event within two one (21) Business DaysDay) 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 Dominion Account”), 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;
(vi) if any Eligible Account of any Grantor includes a charge for any taxes, Administrative Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Grantor and to charge such Grantor therefor; provided, however, that none of Administrative Agent, Collateral Agent and Lenders shall be liable for any taxes that may be due from any Grantor or with respect to any Collateral.
(vii) whether or not a Default or Event of Default exists, Administrative Agent shall have the right at any time, in the name of Administrative Agent, any designee of Administrative Agent or any Grantor to verify the validity, amount or any other matter relating to any Receivables of any Grantor by mail, telephone or otherwise and each Grantor shall cooperate fully with Administrative Agent in an effort to facilitate and promptly conclude any such verification process; and
(viviii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants Section 5.1 Conduct of Business by the Company and agrees Parent.
(a) From and after the date hereof and prior to the earlier of the Effective Time and the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the “Termination Date”), and except (i) as may be required by applicable Law, any Governmental Entity of competent jurisdiction or the rules or regulations of the NASDAQ Stock Market, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly contemplated or required by this Agreement, (iv) as set forth in Section 5.1(a) of the Company Disclosure Letter, or (v) as may be necessary or commercially reasonable and generally consistent with actions taken by substantially similarly situated organizations in response to the same, in response to any COVID-19 Measures or Russia Sanctions, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of business consistent with past practice and to the extent consistent therewith, preserve satisfactory business relationships with its suppliers, customers, distributors and other Persons having material business relationships with it; provided, however, that, without limitation to any provision of Section 5.1(b), this sentence shall in no event prohibit (A) termination of any current or former employee of any Acquired Company in the ordinary course of business consistent with past practices, or (B) allowing any Company Contracts with employees, service providers, suppliers, customers, distributors, and other Persons having business relationships with the Acquired Companies to expire in accordance with their terms in the ordinary course of business and consistent with past practices; provided, further, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision.
(b) From and after the date hereof and prior to the earlier of the Effective Time and the Termination Date, and except (v) as may be required by applicable Law, any Governmental Entity of competent jurisdiction or the rules or regulations of the NASDAQ Stock Market, (w) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (x) as may be expressly contemplated or required by this Agreement, (y) as set forth in Section 5.1(b) of the Company Disclosure Letter or (z) as may be necessary or commercially reasonable and generally consistent with actions taken by substantially similarly situated organizations in response to the same, in response to any COVID-19 Measures or Russia Sanctions, the Company:
(i) it shall keep not, and maintain at shall not permit any of its own cost and expense satisfactory and complete records of the Receivables, including, but not limited Subsidiaries to, the originals of all documentation authorize, declare or pay any dividends on or make any distribution with respect to all Receivables its outstanding shares of capital stock (whether in cash, assets, stock or other securities of the Company or its Subsidiaries), except for (A) the authorization and records payment by the Company of all payments received dividends, consistent with past practice, at a rate not to exceed a quarterly rate of $0.28 per Share and all credits granted on with record and payment dates consistent with past practice of the ReceivablesCompany during the prior 12 months, all merchandise returned or (B) dividends and all other dealings therewithdistributions paid by wholly owned Subsidiaries of the Company to the Company or to any of its wholly owned Subsidiaries;
(ii) upon Collateral Agent’s reasonable requestshall not, it and shall xxxx conspicuouslynot permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock or other securities of any Acquired Company or issue or authorize or propose 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 or such other securities, all Chattel Paper, Instruments and other evidence except for any such transaction by a wholly owned Subsidiary 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 Company that Collateral Agent has remains a security interest thereinwholly owned Subsidiary after consummation of such transaction;
(iii) except as required by Company Benefit Plans or Collective Bargaining Agreements as in effect on the date hereof, shall not, and shall not permit any of its Subsidiaries to (A) increase the compensation or other benefits (including, without limitation, bonus, severance, change in control, retention, retirement or termination pay or benefits) payable or provided to the Company’s Service Providers, except for annual merit-based and promotion-based increases effected in the ordinary course of business consistent with past practice and expressly set forth on Section 5.1(b) of the Company Disclosure Letter, (B) enter into any employment, change of control, severance, retirement or retention agreement with any current or former Service Provider of the Company or any of its Subsidiaries, (C) establish, adopt, enter into or materially amend or terminate any Company Benefit Plan or Collective Bargaining Agreement, other than in respect amendments expressly set forth on Section 5.1(b) of obligations subject to good faith disputesthe Company Disclosure Letter, it shall perform in all material respects all of its obligations (D) recognize any new union, works council or similar employee representative with respect to any current or former Service Provider, (E) grant any equity or equity-based awards to any current or former Service Provider, or discretionarily accelerate the Receivablesvesting or payment of any Company Equity Award (including taking action to deem satisfied any performance goals prior to the end of the performance period in existence as of the date hereof, other than as required by Section 2.3(a)), (F) hire any employees who upon hire, would be a Key Employee or (G) terminate the employment of any Key Employee (other than the termination of any such employee for cause);
(iv) shall not, and shall not permit any of its Subsidiaries to, enter into or make any loans or advances or capital contributions to, any other Person (other than (A) in the ordinary course of business, including any such loans or advances to any of its directors, employees, agents or consultants or (B) any loans, advances or capital contributions to any wholly owned Subsidiary of the Company) or make any change in its existing borrowing or lending arrangements for or on behalf of any or such Persons, except as required by the terms of any Company Benefit Plan;
(v) shall not, and shall not permit any of its Subsidiaries to, materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP or SEC rule or policy;
(vi) except as required by the rules or requirements of any stock exchange or as to comply with Section 3.24, shall not(A) adopt any amendments to the Company’s certificate of incorporation or bylaws or any other organizational documents or (B) permit any of the Company’s Subsidiaries to amend its applicable organizational documents except, in the case of this clause (B), for any changes that would not be adverse to Parent in any material respect;
(vii) shall not, and shall not permit any of its Subsidiaries to, acquire, directly or indirectly any assets, securities, properties or businesses for an amount in excess of $10,000,000 individually or $25,000,000 in the aggregate (for the Company and all of its Subsidiaries), other than supplies, equipment, inventory, or products in the ordinary course of business;
(viii) except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, shall not, and shall not permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or Lien of, any shares of its capital stock or other securities or ownership interests in the Company or any Subsidiaries of the Company or any securities convertible into, exercisable for or exchangeable for any such shares, securities or ownership interests or take any action to cause to be vested any otherwise unvested Company Equity Award (except as otherwise required by the terms of this Agreement or required pursuant to the express terms of any such Company Equity Award, in each case, outstanding as of the date of this Agreement, provided that, for the avoidance of doubt, the Company and its Subsidiaries shall not discretionarily accelerate the vesting or payment of any Company Equity Award, as provided in Section 5.1(b)(iii) above), other than (A) issuances of Shares in respect of any exercise of or settlement of Company Equity Awards outstanding on the date hereof or as may be granted after the date hereof as permitted under this Section 5.1(b) and (B) sales or issuances of shares of Common Stock pursuant to the Company ESPP in accordance with its terms or Section 2.3(b) of this Agreement;
(ix) except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, purchase, redeem or otherwise acquire any shares of its capital stock or other securities or ownership interests in any Acquired Company or any rights, warrants or options to acquire any such shares, securities or interests, other than the acquisition of Shares from a holder of a Company Equity Award in satisfaction of withholding obligations or the payment of exercise price;
(x) shall not, and shall not permit any of its Subsidiaries to, incur, assume, or guarantee, any Indebtedness, except for (A) any Indebtedness among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, (B) any indebtedness for borrowed money to the extent on a dollar-for-dollar basis incurred to replace, renew, extend or refinance any existing indebtedness for borrowed money of the Company or its Subsidiaries (including such indebtedness to the extent on a dollar-for-dollar basis incurred to repay or refinance related fees, expenses, premiums and accrued interest), (C) guarantees or credit support provided by the Company or any of its Subsidiaries for indebtedness for borrowed money of the Company or any of its Subsidiaries, to the extent such indebtedness is (I) in existence on the date of this Agreement or (II) incurred in compliance with this Section 5.1(b)(x), (D) Indebtedness incurred pursuant to agreements in effect prior to the execution of this Agreement and disclosed on the Company Balance Sheet, including the Company Credit Agreement and (E) Indebtedness not to exceed $10,000,000 individually and $50,000,000 in aggregate principal amount outstanding at any time incurred by the Company and all of its Subsidiaries other than in accordance with clauses (A) through (D);
(xi) except for transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, license, sublicense, convey, transfer, exchange or swap, or subject to any Lien (other than Permitted Liens) or otherwise dispose of, abandon, permit to lapse or fail to maintain any material portion of its material properties or assets, including the capital stock of Subsidiaries, except for (A) inventory sales, obsolete assets or non-exclusive licenses in the ordinary course of business consistent with past practice, (B) pursuant to existing agreements in effect prior to the execution of this Agreement that are Made Available to Parent (or refinancings thereof permitted pursuant to Section 5.1(b)(x)(B)), or (C) as may be required by any Governmental Entity in order to permit or facilitate the consummation of the transactions contemplated by this Agreement;
(xii) shall not, and shall not permit any of its Subsidiaries to, enter into, modify, amend, terminate (other than expiration in accordance with their terms) or waive any rights under any Material Contract, except any modifications or amendments made in the ordinary course of business and in a manner that is not adverse to the Company in any material respect;
(xiii) shall not, and shall not permit any of its Subsidiaries to, settle, pay, discharge or satisfy any Action, other than (x) any Action relating to Taxes or (y) any Action that (A) does not relate to any Action brought by the stockholders of the Company against the Company and/or its directors relating to the transactions contemplated by this Agreement or a breach of this Agreement or any other agreements contemplated by this Agreement, (B) the settlement, payment, discharge or satisfaction of which does not result in the imposition of equitable or other non-monetary relief on, or the admission of wrongdoing by, the Company or any of its Affiliates and (C) (1) results solely in a monetary obligation involving only the payment of monies by the Company and its Subsidiaries of not more than $5,000,000 individually and $20,000,000 in the aggregate (for the Company and all of its Subsidiaries) (excluding any settlements made under the following clause (2)); (2) results solely in a monetary obligation that is funded by an indemnity obligation to, or an insurance policy of, the Company or any of its Subsidiaries and the payment of monies by the Company or any of its Subsidiaries that are not more than $5,000,000 individually and $20,000,000 in the aggregate (for the Company and all of its Subsidiaries) (not funded by an indemnity obligation or through insurance policies); or (3) that results in no monetary obligation of the Company or any of its Subsidiaries or their receipt of payment; provided, however, that the settlement, release, waiver or compromise of any Action or claim brought by the stockholders of the Company against the Company and/or its directors relating to the transactions contemplated by this Agreement shall be subject to Section 5.11 rather than this Section 5.1(b);
(xiv) shall not, and shall not permit any of its Subsidiaries to, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (except for such transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries);
(xv) except (A) as contemplated by the Company’s capital expenditure budget set forth in Section 3.11(a)-1(ii) of the Company Disclosure Letter or (B) to the extent reasonably necessary to protect human health and safety or in response to casualty events, shall not, and shall not permit any of its Subsidiaries to, make any capital expenditure in excess of $5,000,000, individually, or $10,000,000, in the aggregate (for the Company and all of its Subsidiaries);
(xvi) other than in the ordinary course of business consistent with past practices (if any), shall not, and while no Event of Default exists, it shall not amendpermit any of its Subsidiaries to, modify(A) make, terminate change or waive revoke any provision material Tax election, (B) adopt or change any material method of Tax accounting or change any Receivable material Tax accounting period, (C) file any material amended Tax Return, (D) settle or compromise any material Action in any manner which could reasonably be expected to have a Material Adverse Effect respect of Taxes for an amount materially in excess of the amount accrued or reserved with respect thereto on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension or renewal financial statements of the time of payment of any ReceivableCompany and its Subsidiaries, (xE) compromise or settle request any dispute, claim or legal proceeding material ruling from any Governmental Entity with respect to Taxes or (F) materially amend or terminate, or knowingly fail to comply with the terms of, or otherwise take or knowingly fail to take any Receivable for less than action, which failure to comply, action or failure to act would have a significant adverse effect on the total unpaid balance thereof, (y) release, wholly or partiallycontinued validity and effectiveness of, any Person liable for the payment thereof, or (z) allow any credit or discount thereon;
(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, any Supporting Obligation or Collateral Support, Tax Incentive that is in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall take such action effect as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 thereondate hereof; and
(vixvii) it shall use not, and shall not permit any of its commercially reasonable efforts Subsidiaries to, agree, in writing or otherwise, to keep in full force and effect take any Supporting Obligation or Collateral Support relating to any Receivableof the foregoing actions.
Appears in 1 contract
Covenants and Agreements. Each Grantor Debtor 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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Debtor shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Debtor's name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Secured Party in all material respects all of its obligations with respect writing, by executing and delivering to the ReceivablesSecured Party 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, chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Secured Party may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity and perfection of the Secured Party's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) other than in the ordinary course of business and while no Event of Default exists, 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 to the extent the validity thereof is being contested in good faith; provided, such Debtor shall in any event pay such taxes, assessments, charges, levies or claims not amend, modify, terminate or waive any provision later than five (5) days prior to the date of any Receivable in proposed sale under any manner which could reasonably be expected to have a Material Adverse Effect on the value judgment, writ or warrant of attachment entered or filed against such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant Debtor 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) each Grantor shall continue to collect all amounts due upon such Debtor 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) enforce, at the expense officer of such GrantorDebtor obtaining knowledge thereof, collection it shall promptly notify the Secured Party in writing of any such Receivables event that may materially and to adjust, settle adversely affect the value of the Collateral or compromise the amount or payment any portion thereof, in the same manner and ability of any Debtor or the Secured Party 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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect dispose of the Receivables, 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 the Secured Party in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereon; andany portion thereof;
(vi) it shall use its commercially reasonable efforts to keep deliver to the Secured Party landlord consents, to the extent it occupies and has business activities on any premises as a lessee under a lease, executed by the landlord in full force respect of such lease the effect of which would subordinate the claims of such landlord to the Liens created under this Agreement and effect enable the Secured Party to access such premises without delay for the purpose of enforcing such Liens; and
(vii) it shall use commercially reasonable efforts to promptly deliver to the Secured Party executed UCC Termination Statements, Intellectual Property releases and such other releases, terminations or discharges of any Supporting Obligation Lien held by First Union National Bank upon the Collateral or Collateral Support relating to any Receivableother asset of such Debtor.
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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in all material respects all 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) other than if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the ordinary course use of business and while no Event of Default existsany 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 paid in the chronological order such Grantor acquired 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 to the extent the validity thereof is being contested in good faith; provided, such Grantor shall in any event pay such 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 or any of the Collateral 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 in writing of any event that may have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course Collateral or any portion thereof, the ability of business and so long as no Event of Default exists, such any Grantor shall not (w) grant any extension or renewal the Collateral Agent to dispose 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 portion thereof, or (z) allow the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany portion thereof;
(vvii) each Grantor it shall continue to collect all amounts due not take or to become due to such Grantor under permit any action which could impair 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest 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: (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 Collateral Agent; (B) 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 (C) 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 (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 (the “Collateral Account”), 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 ReceivableCredit 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 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, the originals of all documentation and in any event in conformity 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 therewithGAAP;
(ii) upon the request of the Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 as generally conducted by it on and while no Event of Default existsprior to the date hereof, it shall not amend, modify, terminate or waive any provision of any Receivable and except as otherwise provided in any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existssubsection (v) below, 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, Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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.
Appears in 1 contract
Samples: Financing Agreement (Global Geophysical Services Inc)
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 satisfactory and complete records survive the Closing Date for the duration of the Receivables, including, but not limited to, the originals of all documentation Claims Period. Any claim made by Buyer with respect to all Receivables such representations and records warranties must be initiated by giving notice during the Claims Period. All of all payments received said representations and all credits granted warranties shall in no respect be limited or diminished by any past or future inspection, investigation, examination or possession (whether before or after the Closing) on the Receivablespart of Buyer, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable requestor its Representatives; provided, it shall xxxx conspicuouslyhowever, in form and manner reasonably satisfactory that, subject to Collateral AgentSection 6.5, 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 extent that Collateral Agent as a result of any such inspection, investigation, examination or possession prior to the Closing Buyer has a security interest therein;
(iii) other than actual knowledge that any representation or warranty of the Target is untrue or that any covenant or agreement made by the Target, any Subsidiary or any Shareholder contained in respect of obligations subject to good faith disputesArticles 2, it 6 and 10 have not been performed, then neither the Target nor any Shareholder shall perform in all material respects all of its obligations have any liability with respect to the Receivables;
(iv) other than in the ordinary course such untrue representation or warranty or unperformed covenant. For purposes 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 information or documents not set forth on or listed in the Schedules to Article 4 of Receivables received by this Agreement, except that, to the extent not listed on such Grantor Schedules, Buyer shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor deemed to have knowledge of all matters contained in the exact form receiveddocuments 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, duly indorsed by such Grantor any Subsidiary or any Shareholder contained in Articles 2, 6 and 10 of this Agreement which are required to Collateral Agent if required, in a collateral account (be performed prior to the “Collateral Account”)Closing Date shall survive the Closing for the duration of the Claims Period, and until so turned over, all amounts any claim made by Buyer with respect thereto must be initiated by written notice during the Claims Period. All covenants and proceeds (including checks and other instruments) received agreements made by such Grantor in respect of the ReceivablesTarget, any Supporting Obligation Subsidiary or Collateral Support 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 be received in trust for survive the benefit of Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle Closing Date until fully performed 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 Receivabledischarged.
Appears in 1 contract
Samples: Merger Agreement (Idex Corp /De/)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its material obligations with respect to the Receivables;
(iviii) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and other than as no permitted by the Parity Lien Documents and except as otherwise provided in subsection (iv) below, following an Event of Default existsDefault, 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, Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the 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 Collateral Agent Trustee may: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of the Collateral Trustee, 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (Belden & Blake Corp /Oh/)
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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation Receivables in accordance 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 therewithprudent business practices;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory promptly transfer or cause to Collateral Agent, be transferred all Chattel Paper, Instruments and other evidence funds arising from the collection of all Receivables to a Deposit Account listed on Schedule 4.4(A)(8)(b) 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) other than in respect of obligations subject to good 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 other than in any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateralaccordance with prudent business practices. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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; provided, the Secured Party shall not take any of the actions set forth in this sentence if and to the extent that such action is prohibited under any federal or state law. 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 (Collection Account maintained under the “Collateral Account”)sole dominion and control of the 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;
(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.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Xo Communications 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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation its Receivables consistent 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 therewithits past practice;
(ii) upon at the request of the Collateral Agent’s reasonable requestAgent after the occurrence and during the continuation of an Event of Default, 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables in accordance with its normal business practice;
(iv) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following the occurrence and during the continuation of an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 Receivableof its Receivables, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense, 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 following the occurrence and during the existence continuation of an Event of Default 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, subject to the terms of the Intercreditor Agreement: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
Samples: Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees with the 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) except for the security interest created by this Agreement, it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Receivables and records of 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in all material respects all corporate form or otherwise) sole place of its obligations with respect business, chief executive office, type of organization or jurisdiction of organization unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Receivables;Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules necessary to notify the Collateral Agent of changes, additions, dispositions or substitutions of the Collateral thereto, at least ten (10) Business Days prior to any such change, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization 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; and
(iv) other than in the ordinary course of business and while no Event of Default exists, it shall not amend, modify, terminate take or waive permit any provision of any Receivable in any manner action which could reasonably be expected to have a Material Adverse Effect on materially impair the value of such Receivable as Collateral. Other than Collateral Agent's rights in the ordinary course of business and so long as no Event of Default exists, 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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 ReceivableCollateral.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation Receivables in accordance 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 therewithGAAP;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all material Chattel Paper, Paper and Instruments and other evidence of Receivables (other than any as delivered to the Collateral Agent as provided herein), as well as ) in excess of $100,000 individually or $500,000 in the Receivables Records aggregate with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) other than in respect of obligations subject to good 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 would reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business or in compliance with reasonable commercial practices as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, during the continuance of an Event of Default existsDefault, 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 or as constitutes a Permitted Sale, each Grantor shall continue to collect all material 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 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 At any time following the occurrence and during the existence continuance of an Event of Default Default, the Collateral Agent may, following ten (10) days’ prior written notice to the Borrower: (1) 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, Collateral Agent may: (A2) 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; (B3) notify, or require any Grantor to notify, each Person maintaining a lockbox account 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 account or other arrangement directly to the Collateral Agent; and (C4) 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 (23) 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”)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 material Receivable.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tumi Holdings, 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 satisfactory and complete records of the Receivables, including, but not limited to, the originals of all documentation its Receivables consistent 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 therewithits past practice;
(ii) upon at the request of the Collateral Agent’s reasonable requestAgent after the occurrence and during the continuation of an Event of Default, 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the ReceivablesReceivables in accordance with its normal business practice;
(iv) other than in the ordinary course of business as generally conducted by it on and while no prior to the date hereof, and except as otherwise provided in subsection (v) below, following the occurrence and during the continuation of an 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsDefault, 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 of its Receivable, or any Supporting Obligation or Collateral SupportSupport therefor, in each case, at its own expense, 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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.Collateral
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense reasonably satisfactory and complete records of the Receivables, including, but not limited to, the originals 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) upon the reasonable request of the Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than in except as otherwise permitted by the ordinary course of business and while no Event of Default existsCredit 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, upon the occurrence and during the continuance of an Event of Default existsor 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an upon written notice (which, if no Event of Default 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 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: (A1) 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; (B) 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 (C2) 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 (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 (the “Collateral Account”), 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.
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 satisfactory 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 Effect on materially 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 from time to time, upon the occurrence and so long as no during the continuance of an Event of Default existsDefault, 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, Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 upon the occurrence and during the existence continuance of an Event of Default 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 and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (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; (B) 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 (C) 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”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
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 satisfactory 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, the originals of senior priority thereof) against 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) upon Collateral Agent’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 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) other than it shall not produce, use or permit any Collateral to be used unlawfully in any material respect or in violation of any provision of this Agreement or in violation in any material respect of obligations subject to good faith disputesany applicable statute, it shall perform in all material respects all regulation or ordinance or any policy of its obligations with respect to insurance covering the ReceivablesCollateral;
(iv) other than it shall not effect any change: (a) in the ordinary course Grantor’s legal name, (b) in the location of business the Grantor’s chief executive office, (c) in the Grantor’s identity or 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 other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), unless such change is permitted under the DIP Credit Agreement and while no Event Financing Orders and until it shall have given the Grantee not less than thirty (30) days’ prior written notice (in the form of Default existsan 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 change in the location of any 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 not amend, modify, terminate or waive any provision promptly notify the Grantee in writing of any Receivable in event, including, without limitation, the levy of any manner which legal process against the Collateral or any material portion thereof, that could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default existsCollateral or any material portion thereof, such Grantor shall not (w) grant any extension or renewal the ability of the time Grantor or the Grantee to dispose of payment of the 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 any credit or discount thereon;
(v) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”), 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 its 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 Receivablematerially diminish the value, 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 satisfactory 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, the originals of all documentation and in any event in conformity 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 therewithGAAP;
(ii) upon Collateral Agent’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;[reserved]
(iii) other than in respect of obligations subject to good 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 excess of $250,000 individually for any invoice or $1,000,000 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 Receivable as CollateralCollateral other than in the ordinary course of business. Other than in the ordinary course of business and so long except as no otherwise provided in subsection (iv) below, following and during the continuance of an Event of Default existsDefault, 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;; PLEDGE AND SECURITY AGREEMENT EXECUTION
(viv) 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 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 during the existence of an Event of Default 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; provided however, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (A1) 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; (B2) 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 (C3) 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”)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) 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 Receivable; and
(vi) it shall notify the Collateral Agent in writing the next Quarterly Reporting Date following receipt of any Material Receivable in respect of which the Account 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 (Bell Powersports, Inc.)
Covenants and Agreements. Each Grantor hereby Except as otherwise specifically provided for herein, the representations, warranties, covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory and complete records agreements of the ReceivablesBuyer and the Seller included or provided for herein, includingor in other instruments or agreements in connection herewith, but not limited toand the obligation of the Buyer and Seller to indemnify on account of a breach or violation thereof shall survive for a period of thirty-six (36) months following the date hereof (or such longer period as set forth in the succeeding sentences). Similarly, the originals obligation of all documentation with respect Seller to all Receivables and records of all payments received and all credits granted on indemnify the Receivables, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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 Buyer with respect to any Receivable liability of Seller, shall survive until such liability or claim is fully paid and discharged. There shall be no limit on the survival of the indemnification obligations of Seller for less than breaches of the total unpaid balance thereofrepresentations or warranties made by Seller as to the transfer of legal and valid title to the Assets. Notwithstanding anything herein to the contrary, (y) releaseif, wholly prior to the expiration of any indemnification period, the Buyer, or partiallySeller, as the case may be, shall have been notified of a claim for indemnity hereunder and such claim shall not have been finally resolved before the expiration of such period, any Person liable representation, warranty, covenant or agreement that is the basis for the payment thereof, or (z) allow any credit or discount thereon;
(v) each Grantor such claim shall continue to collect all amounts due survive and shall remain a basis for indemnity as to such claim until such claim is finally resolved. All statements contained herein or to become due to such Grantor under consummate the Receivables transactions as contemplated shall be deemed representations and warranties for all purposes of this Agreement. The respective representations and warranties of Seller and the Buyer contained herein or in 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 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest other documents covered in the Receivables and preceding sentence shall not be deemed waived or otherwise affected by any Supporting Obligation and, in addition, at investigation made by any time following the occurrence and during the continuation of an Event of Default, Collateral Agent may: (A) direct the Account Debtors under party hereto or any Receivables to make payment of all amounts due amendment or to become due to such Grantor thereunder directly to Collateral Agent; (B) 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 (C) 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 supplement to the same extent as such Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to collect schedules or exhibits hereto occurring after the Receivables in accordance with the preceding sentence, any payments signing 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 (the “Collateral Account”), 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 Receivablethis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Augme Technologies, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory accurate and complete records of the Receivables, including, but not limited to, the originals of Receivables in 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 therewithmaterial respects;
(ii) upon at the request of the Collateral Agent’s reasonable request, 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 First Lien Agent pursuant to and in accordance with the terms of the Intercreditor Agreement, or after the Discharge of the First Lien Obligations, to the Second Lien Collateral Agent pursuant to and in accordance with the terms of the Intercreditor Agreement, or after the Discharge of the Second Lien Obligations, 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) other than in respect of obligations subject to good 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 would reasonably be expected to have a Material 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 so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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;; and
(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 in accordance with prudent business practices exercise each material right it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 following the occurrence and during the existence continuance of an Event of Default 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, Collateral Agent may: (A1) 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; (B2) 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 (C3) 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) 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 (the “Collateral Account”)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.
Appears in 1 contract
Samples: Third Lien Pledge and Security Agreement (Vonage Holdings Corp)
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 its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its obligations with respect to the Receivables, except as could not reasonably be expected to have Material Adverse Effect;
(ivii) 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 Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof and, except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence continuance of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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”)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.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (CVR Energy Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it shall perform in all material respects all of its material obligations with respect to the Receivables;
(iviii) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and other than as no permitted by the Credit Agreement and except as otherwise provided in subsection (iv) below, following an Event of Default existsDefault, 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, Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the 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 Collateral Agent Trustee may: (A1) 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; (B2) 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 (C3) 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”)Account maintained under the sole dominion and control of the Collateral Trustee, 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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any 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 Collateral Trustee (or its agent or designee) appropriately indorsed to the Collateral Trustee or indorsed in blank: (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 shall keep and maintain at its own cost and expense satisfactory and complete records of In the Receivables, including, but not limited to, event 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) upon Collateral Agent’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) other than in respect of obligations Property is subject to good 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 any deed restrictions or waive any provision restrictive covenants 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. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not kind (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) 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 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 during the existence of an Event of Default 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: (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral AccountCCRs”), Seller shall diligently cooperate with and until so turned overassist Purchaser in obtaining from all appropriate parties to the CCRs, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivablesany owner association, 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 adjustconsents, 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 thereonapprovals and/or estoppels requested by Purchaser; and
(vij) it Seller shall use its 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 Receivableterms.
Appears in 1 contract
Samples: Contract of Sale
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’s '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 (subject to the terms of the Intercreditor Agreement to the extent then in effect) 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) other than in respect of obligations subject to good 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 consistent with past practices 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business business, and so long except as no otherwise provided in subsection (v) below, after the occurrence and during the continuance of an Event of Default existsDefault, 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 or as permitted by subsection (iv) above, 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 in connection with such collections and exercise, such Grantor shall take such action as such Grantor or Collateral Agent may deem necessary or advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any time during the existence of an Event of Default 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: (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 Collateral AgentAgent (subject to the terms of the Intercreditor Agreement, to the extent then in effect); (B) 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 AgentAgent (subject to the terms of the Intercreditor Agreement, to the extent then in effect); and (C) 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 (the “Collateral Account”"COLLATERAL ACCOUNT"), 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.
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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B2) 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 (C3) 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 Account”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 its commercially reasonable best efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Second 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 and termination of all Commitments:
(i) it shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good 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 that could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by it, and so long except as no otherwise provided in subsection (v) below, during the continuance of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 following the occurrence and during the existence continuation of an Event of Default 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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants Section 4.1 Conduct of Business by the REIT Pending the Arrangement. During the period from the date of this Agreement to the earlier of the Closing and agrees that:
the termination of this Agreement in accordance with Section 6.1 hereof (the “Interim Period”), except as otherwise expressly contemplated or permitted by this Agreement or as required by Law, the REIT shall, and shall cause each REIT Subsidiary to, in all material respects, use commercially reasonable efforts (i) it shall keep to carry on their respective businesses in the usual, regular and maintain at its own cost and expense satisfactory and complete records of ordinary course, consistent with the Receivables, including, but not limited toOperating Budget, the originals of all documentation with respect to all Receivables Capital Expenditure Budget and records of all payments received the Development Expenditure Budget and all credits granted on the Receivablespast practice, all merchandise returned and all other dealings therewith;
(ii) upon Collateral Agent’s reasonable requestto maintain and preserve substantially intact their respective current business organizations, 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) other than in respect to retain the services of obligations subject to good faith disputestheir respective current officers and key employees, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) to preserve their goodwill and relationships with tenants and others having business dealings with them and (v) to preserve their assets and properties in good repair and condition (normal wear and tear excepted) and to perform and complete all Development Projects in accordance with the applicable project timetable, with good workmanship and consistent with past practices. Without limiting the generality of the foregoing, during the Interim Period, the REIT will not and the REIT shall cause each REIT Subsidiary not to (except as expressly permitted by this Agreement or as expressly contemplated by the transactions contemplated hereby, as required by Law, as set forth in Section 4.1 of the REIT Disclosure Letter or to the extent that the Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, delayed or conditioned):
(a) (i) amend the Declaration of Trust or similar organizational or governance documents of the REIT or of U.S. REIT Subsidiary or (ii) amend the organizational or governance documents of any other REIT Subsidiary, other than in the ordinary course of business and while no Event consistent with past practice;
(b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Default existsoptions, it shall not amendwarrants, modifycommitments, terminate subscriptions, rights to purchase or waive otherwise) any provision shares or units of any Receivable class, partnership interests or any equity equivalents (including any options or share or unit appreciation rights) or any other securities convertible into or exchangeable for any shares or units, partnership interests or any equity equivalents (including any options or share or unit appreciation rights), except for the issuance or sale of REIT Units pursuant to the exercise of derivative securities outstanding on the date hereof and disclosed in Section 2.2(c) of the REIT Disclosure Letter;
(c) (i) split, combine or reclassify any of their respective shares, units, partnership interests or other equity interests, set aside or pay any dividend or other distribution (whether in cash, shares, units, partnership interests or other equity interests or property or any combination thereof) or amend the terms of any of their respective securities in any manner which could reasonably be expected manner, except (A) as permitted pursuant to have a Material Adverse Effect Section 4.10, (B) for the payment of unpaid dividends or distributions declared prior to the date of this Agreement and disclosed in the REIT Public Filings in transactions between the REIT and each wholly-owned REIT Subsidiary or solely between wholly-owned REIT Subsidiaries, or (C) distributions on the value preferred units issued by U.S. REIT Subsidiary in accordance with the terms of such Receivable preferred units; (ii) redeem, repurchase or otherwise acquire, directly or indirectly, any of their respective securities or any securities of any of their respective Subsidiaries except in the case of clause (ii) as Collateral. Other may be required by the Declaration of Trust or pursuant to the terms of the REIT’s equity incentive plans or as may be reasonably necessary for the REIT to maintain its status as a REIT under the Tax Act; or (iii) enter into any Contract with respect to the voting or registration of any units or equity interest of the REIT or any REIT Subsidiary;
(d) subject to the provisions of Section 4.4, authorize, recommend, propose or announce an intention to adopt, or effect, or adopt or effect a plan of complete or partial liquidation, dissolution, arrangement, amalgamation, merger, consolidation, restructuring, recapitalization or other reorganization;
(e) (i) other than as set forth in Section 4.1(e) of the REIT Disclosure Letter, incur, assume, refinance or guarantee any Indebtedness for borrowed money or issue any debt securities, or assume or guarantee any Indebtedness for borrowed money of any Person, except for borrowings and guarantees under the REIT’s Existing Loan Documents in the ordinary course of business and so long consistent with past practice, (ii) except as no Event of Default exists, such Grantor shall not (wset forth in Section 4.1(e) grant any extension or renewal of the time REIT Disclosure Letter, prepay, refinance or amend any Indebtedness, except for
(A) repayments under the REIT’s existing credit facilities in the ordinary course of payment business consistent with past practice (specifically excluding the loans secured, directly or indirectly, by any REIT Real Property), and (B) mandatory payments under the terms of any ReceivableIndebtedness in accordance with its terms or (iii) make loans, advances or capital contributions to or investments in any Person (other than (x) compromise as required by any Contract in effect on the date hereof (specifically excluding capital contributions called or settle consented to by the REIT or any disputeREIT Subsidiary except as permitted pursuant to Section 4.1(q) below) or (y) as permitted pursuant to Section 4.1(q));
(f) create or suffer to exist any material Lien (other than Permitted Liens) on shares, claim units, partnership interests or legal proceeding other equity interests of any REIT Subsidiary;
(g) except as set forth in Section 4.1(g) of the REIT Disclosure Letter, as required by Law, as required by the terms of any REIT Employee Benefit Plan, or as expressly otherwise contemplated by this Agreement, (i) enter into, adopt, amend or terminate any REIT Employee Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the REIT or any REIT Subsidiary and one or more of their trustees, directors or executive officers, (iii) except for increases or payments in the ordinary course of business consistent with past practice (i.e., as part of the regular annual review of, and adjustments to, the compensation and fringe benefits of non-executive officers of the REIT and each REIT Subsidiary) with respect to any Receivable for less than non-executive officer, increase in any manner the total unpaid balance thereofcompensation or fringe benefits of any employee, officer, trustee or director, (yiv) releasegrant to any officer, wholly trustee, director or partiallyemployee the right to receive any new severance, change of control or termination pay or termination benefits or any Person liable for increase in the payment thereofright to receive any severance, change of control or (z) allow any credit termination pay or discount thereon;
termination benefits, (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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of Collateral Agent’s security interest except in the Receivables and ordinary course of business consistent with past practice with respect to any Supporting Obligation andnon-executive officer, in additionenter into any new employment, at any time following the occurrence and during the continuation of an Event of Defaultloan, Collateral Agent may: (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 Collateral Agent; (B) notifyretention, or require any Grantor to notifyconsulting, each Person maintaining a lockbox indemnification, termination 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 (C) 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 (the “Collateral Account”), 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.agreement,
Appears in 1 contract
Samples: Arrangement Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) it shall keep and maintain at its own cost and expense satisfactory accurate and complete records of the Receivables, including, but not limited to, the originals Receivables as are customarily maintained under similar circumstances by Persons 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 therewithestablished reputation engaged in similar businesses;
(ii) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 existsor 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 material adverse effect on the value of such Material Receivable as Collateral. Other than in the ordinary course of business business, and so long except as no otherwise provided in subsection (v) below, after the occurrence and during the continuation of an Event of Default existsDefault, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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; 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: (A1) 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; (B2) 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 (C3) 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 (2) 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 (Securities Account or Deposit Account subject to a control agreement in the “form of Exhibit B or Exhibit C, or such other control agreement in form and substance reasonably satisfactory to the Revolving Collateral Account”)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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, 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 satisfactory and complete records the consummation of the Receivables, including, but not limited to, Proposed Reorganization is permitted by 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 therewithCredit Agreement;
(ii) upon Collateral Agent’s reasonable request, it shall xxxx conspicuously, in form and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and other evidence the Grantor complies with the provisions 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) other than VP Distributors, LLC, the survivor of the Merger (as defined in respect of obligations subject to good faith disputesSchedule 1.1), it shall perform in all material respects all of its obligations with respect have 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) 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, such Grantor shall not (w) grant any extension or renewal distribution of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect Pledged Equity Interests to any Receivable for less than Virtus Partners is subject to 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) each Grantor substantially contemporaneously with the distribution of the Pledged Equity Interests to Virtus Partners, the Security Certificate evidencing the Pledged Equity Interests shall continue have been replaced by a new Security Certificate registered in the name of Virtus Partners, which Security Certificate (together with an undated stock power executed in blank) shall 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 Receivableagreed that upon receipt of such new Security Certificate, any Supporting Obligation or Collateral Support, in each case, at its own expense, and in connection with such collections and exercise, such the Security Certificate delivered by the Grantor on the Closing Date shall take such action as such Grantor may deem necessary or advisable. Notwithstanding be delivered by the foregoing, Collateral Administrative Agent to Virtus Partners which will cancel the same;
(vi) the Administrative Agent shall have the right at any time during the existence of an Event of Default 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: such certificates (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 Collateral Agent; (B) 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 (C) 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 (the “Collateral Account”including good standing certificates), UCC-1 financing statements and until so turned over, all amounts and proceeds (including checks 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 its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivablereasonably require.
Appears in 1 contract
Samples: Credit 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 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) upon Collateral Agent’s reasonable request, 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) other than in respect of obligations subject to good 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 Effect on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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 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 during the existence of an Event of Default 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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
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 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) upon Collateral Agent’s reasonable request, it shall xxxx conspicuouslypromptly 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 form (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 manner reasonably satisfactory to during the existence of an Event of Default 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) other than in respect of obligations subject to good faith disputes, 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) 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 Effect on the value of such Receivable as CollateralEffect. Other than in the ordinary course of business as generally conducted by it on and so long prior to the date hereof, and except as no otherwise provided in subsection (v) below, following an Event of Default existsDefault, 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, 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 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 during the existence of an Event of Default 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 '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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care 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 satisfactory and complete records At the reasonable request 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) upon Collateral Agent’s reasonable request, 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) It will not, without the Collateral Agent’s prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any such Receivable, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Supporting Obligation or Collateral Support relating thereto, or allow any credit or discount whatsoever thereon, other than in respect of obligations subject to good faith disputesextensions, it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) other than credits, discounts, releases, compromises or settlements granted or made in the ordinary course of business and while no Event of Default existsconsistent with its then current practices and in accordance with such practices reasonably believed by such U.S. Grantor to be prudent.
(iii) Except as otherwise provided in this Section and unless otherwise determined by such Grantor in accordance with its good faith business judgment, 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 such Receivable as Collateral. Other than in the ordinary course of business and so long as no Event of Default exists, 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) each Grantor 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 cost and expense, 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 after the occurrence and during the existence continuance of an Event of Default 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 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: (Ai) 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; (B) 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 (Cii) 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 (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 (the “Collateral Account”), and until so turned over, all amounts and proceeds (including checks and of 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 its commercially 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 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 Concentration Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) it such Grantor shall keep and maintain at its own cost and expense 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) upon Collateral Agent’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) other than in respect of obligations subject to good faith disputes, it such Grantor shall perform in all material respects all of its obligations with respect to the Receivables;
(iv3) other than in the ordinary course of business and while no Event of Default exists, 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 on the value of such Receivable as Collateral. Other than in the ordinary course of business as generally conducted by such Grantor on and so long prior to the date hereof, and except as no otherwise provided in subsection (5) below, following an Event of Default existsDefault, 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) each 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, 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, any Supporting Obligation or Collateral Support, in each case, at its own expense, 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 during the existence of an Event of Default 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: (A1) 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; (B) 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 (C) 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 (the “Collateral Account”), 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.;
Appears in 1 contract
