Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon; (ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and (iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Empire Resorts Inc), Pledge and Security Agreement (Empire Resorts Inc)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees thatwith the Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to the Underwriter, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to the Underwriter, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as the Underwriter may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Underwriter be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Underwriter and counsel for Underwriter and obtain the Underwriter’s consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Common Stock that would constitute an Issuer Free Writing Prospectus without the Underwriter’s prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to the Underwriter, without charge, in such quantities as the Underwriter has requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as the Underwriter may reasonably request for the distribution of the Shares, the Company will deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by the Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to the Underwriter, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the ordinary conduct event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise the Underwriter promptly in writing. The Company will use its business best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the period ending five years from the date hereof, the Company will furnish to the Underwriter (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the extension of payment terms of markers of gaming patrons NASDAQ Global Market (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering “NASDAQ”) or any national securities exchange and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) belowfrom time to time such other information concerning the Company as the Underwriter may reasonably request.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof) or if this Agreement shall be terminated by the Underwriter because of any inability, during failure or refusal on the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal part of the time Company to perform in all material respects any agreement herein or to comply in all material respects with any of payment the terms or provisions hereof or to fulfill in all material respects any of any Receivablethe conditions of this Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by the Underwriter) reasonably incurred by the Underwriter in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (B1) compromise offer for sale, sell, pledge or settle otherwise dispose of (or enter into any disputetransaction or device that is designed to, claim or legal proceeding would reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, equity-based compensation plans or other employee compensation plans existing on the date hereof (including future grants of restricted stock) or pursuant to currently outstanding options, warrants or rights), or sell or grant options, restricted stock, rights or warrants with respect to any Receivable shares of Common Stock or securities convertible into or exchangeable for less Common Stock (other than the total unpaid balance thereofCommon Stock issued pursuant to employee benefit plans, equity-based compensation plans or other employee compensation plans existing on the date hereof (including future grants of restricted stock)), (C2) releaseenter into any swap or other derivatives transaction that transfers to another, wholly in whole or partiallyin part, any Person liable for of the payment thereofeconomic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company, or (D4) allow publicly disclose the intention to do any credit of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and stockholder of the Company set forth on Schedule II hereto to furnish to the Underwriter, prior to the Closing Date, a letter or discount thereon;
letters, substantially in the form of Exhibit A hereto (iithe “Lock-Up Agreements”); notwithstanding the foregoing, if (1) at any time following the occurrence and during the continuation last 17 days of an Event of Defaultthe Lock-Up Period, the Collateral Agent shall have the right at any time to (A) notify, Company issues an earnings release or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of all amounts due announces material news or to become due to such Grantor thereunder directly a material event relating to the Collateral Agent, (C) notify, Company occurs 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 (D) 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 prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the exact form receivedpreceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, duly indorsed by unless the Underwriter waives such Grantor extension in writing.
(o) Prior to the Collateral Agent if requiredClosing Date or the Additional Closing Date, in an Investment Account “controlled” (for purposes as the case may be, the Company will furnish to the Underwriter, as promptly as possible, copies of any unaudited interim consolidated financial statements of the UCC) Company and its subsidiaries for any period subsequent to the periods covered by the Collateral Agent financial statements appearing in the Prospectus.
(it being understood that each Grantor agrees to promptly p) The Company will comply with all provisions of any reasonable request undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect price of the Receivablesshares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are traded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any Supporting Obligation or Collateral Support shall national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be received in trust the same entity as the transfer agent) 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Common Stock.
Appears in 2 contracts
Samples: Underwriting Agreement (Guaranty Federal Bancshares Inc), Underwriting Agreement (Guaranty Federal Bancshares Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant produce, use or permit any extension Collateral to be used unlawfully or renewal of the time of payment in violation of any Receivableprovision of this Agreement or any applicable statute, (B) compromise regulation or settle ordinance or any dispute, claim or legal proceeding with respect to any Receivable for less than policy of insurance covering the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral in a material respect;
(ii) at it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any time following the occurrence and during the continuation of an Event of Default, trade names unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral 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 time 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 (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iii) if the Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(Biv) direct 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 Account Debtors 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 Receivables 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 payment of all amounts due or to become due to such payment;
(v) upon such Grantor thereunder directly 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 the Collateral, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any material portion thereof;
(vi) it shall not take or permit any action which could materially impair the Collateral Agent, (C) 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 (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, ’s rights in the same manner and to the same extent Collateral; and
(vii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as such Grantor might have done. If the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Credit Agreement.
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) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may, upon notice to the Grantor or Company Representative on behalf of Grantors, at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Restatement Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
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) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjustprovision of this Agreement or any applicable statute, settle regulation or compromise ordinance or any policy of insurance covering 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, organizational or federal tax identification number, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of organization or jurisdiction of organization unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least ten (10) days prior to any Receivable such change, identifying such new proposed name, organizational or federal tax identification number, corporate structure, jurisdiction of organization or trade name and providing such other information in excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that may have a Material Adverse Effect on the value of the Collateral, the ability of any Grantor or the Collateral Agent to dispose of the Collateral, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral; and
(v) it shall not take or permit any action which could have a Material Adverse Effect on the Collateral Agent's rights in the Collateral.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept the First Priority Liens and Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjustprovision of this Agreement or any applicable statute, settle regulation or compromise ordinance or any policy of insurance covering 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, organizational or federal tax identification number, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of organization or jurisdiction of organization unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least ten (10) days prior to any Receivable such change, identifying such new proposed name, organizational or federal tax identification number, corporate structure, jurisdiction of organization or trade name and providing such other information in excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that may have a Material Adverse Effect on the value of the Collateral, the ability of any Grantor or the Collateral Agent to dispose of the Collateral, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral; and
(v) it shall not take or permit any action which could have a Material Adverse Effect on the Collateral Agent's rights in the Collateral.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Carmike Cinemas Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect addition to any Receivable for less than rights under the total unpaid balance thereofSection of this Agreement relating to Receivables, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following upon the occurrence and during the continuation of an Event of Default, the Term Collateral Agent shall have the right may at any time notify, or require any Grantor to (A) so notify, the counterparty on any Material Contract of the security interest of the Term Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Term Collateral Agent may upon written notice to the applicable Grantor, but subject to the terms of the Intercreditor Agreement, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Term Collateral Agent;
(ii) each Grantor shall deliver promptly to the Term Collateral Agent a copy of each material written demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall deliver promptly to the Term Collateral Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 (to the extent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts in a manner consistent with its reasonable business judgment;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of pursuant to its reasonable business judgment, and in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Term Collateral Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any material Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any material Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to such Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Term Collateral Agent and use its reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(A) except as permitted under the Secured Agreements, it shall not do any act or omit to do any act whereby any of the Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, or unenforceable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein or herein;
(B) it shall take all reasonable steps in the United States Patent and Trademark Office and the United States Copyright Office, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by such Grantor and material to its business which is now or shall become included in the Collateral constituting Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedule 4.2(A), (B) and (C);
(C) reasonably promptly following each anniversary of the date hereof or at any time upon the request of the Collateral Agent (at the written direction of the Acting Secured Parties), it shall report to Collateral Agent (i) other than in the ordinary conduct filing of its business any new application to register any Intellectual Property with the United States Patent and Trademark Office or the extension of payment terms of markers of gaming patrons United States Copyright Office (including credit arrangements pursuant to Section 1339 of the New York State Racingwhether such application is filed by such Grantor or through any agent, Pari-Mutuel Wagering employee, licensee, or designee thereof) and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) belowany new registration of any Intellectual Property by any such office, during in each case by executing and delivering to Collateral Agent a completed Security Agreement Supplement, substantially in the continuance form of an Event Exhibit A attached hereto, together with a supplement to Schedule 4.2; provided that in the case -------- of Defaultany Intellectual Property that is the subject of any proposed filing described in the preceding clause (i) that is reasonably expected at the time of such filing to be material to the operation of such Grantor's business, such Grantor shall not also provide, within ten (A10) grant any extension or renewal days prior to filing, notice of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect such filing to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or Collateral Agent; and
(D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) requested by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request at the written direction of the Acting Secured Parties) in connection with the actions required pursuant to Section 4.2(b)(C), it shall promptly execute and deliver to Collateral Agent any document required to establish acknowledge, confirm, register, record, or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor perfect Collateral Agent's interest in respect any part of the Receivablesnew Intellectual Property, any Supporting Obligation whether now owned 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000hereafter acquired.
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 not create or suffer to exist any Lien, other than in the ordinary conduct of its business Permitted Liens, upon or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) release, wholly or partially, and such Grantor shall take commercially reasonable steps to defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not intentionally produce, use or permit any time following 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 occurrence and during Collateral, in each case, the continuation non-compliance with which would reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s legal name, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), place of an Event business (or principal residence if such Grantor is a natural person), chief executive office, type of Defaultorganization, jurisdiction of organization or organizational identification number unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least ten (10) days prior to any time such change or establishment, identifying such new proposed legal name, identity, corporate structure, place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or organizational identification number and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or reasonably advisable to (A) notifymaintain the continuous validity, or require any Grantor to notify, any Account Debtor perfection and priority of the Collateral Agent’s security interest in the Receivables Collateral (other than Collateral in which a security interest cannot be perfected under the UCC or other applicable law and soley with respect to perfection, any Supporting Obligation, accounts which are not required to be subjected to a perfected security interest as contemplated under Section 5.15 of the Credit Agreement) intended to be granted and agreed to hereby;
(Biv) direct the Account Debtors under it shall not take or permit any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to action which could materially impair the Collateral Agent, (C) 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 (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, ’s rights in the same manner and to Collateral, except as permitted under the same extent Credit Agreement or this Agreement or as such Grantor might would not 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andMaterial Adverse Effect;
(iiiv) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation Collateral, except as permitted under the Credit Agreement or Collateral Support relating to any Receivable in excess of $500,000.as would not have a Material Adverse Effect; and
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence Collateral;
(iii) it shall not change such Grantor’s name, chief executive office, type of organization or jurisdiction of organization unless permitted by the Credit Agreement and during the continuation of an Event of Default, the provided that it shall have (a) notified Collateral Agent shall have in writing, by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the right at any time form of Exhibit A attached hereto, together with all Supplements to (ASchedules thereto, no later than the deadline set forth in Section 5.1(n) notify, or require any Grantor to notify, any Account Debtor of the Credit Agreement, identifying such new proposed name, chief executive office, type of organization, jurisdiction of organization and providing such other information in connection therewith as Collateral Agent may reasonably request and (b) taken all actions necessary or reasonably requested by Collateral Agent to maintain the continuous validity, perfection and the same or better priority of Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes;
(Bv) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to upon such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) enforce, at the expense officer of such GrantorGrantor obtaining knowledge thereof, collection it shall promptly notify Collateral Agent in writing of any such Receivables and to adjust, settle or compromise event that may have a Material Adverse Effect on 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request value of the Collateral or any portion thereof, the ability of any Grantor or Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 dispose 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 portion thereof, or 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 portion thereof;
(vi) it shall not take or permit any action which could impair Collateral Agent’s rights in the Collateral; and
(iiivii) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except as otherwise permitted by the Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than except for the security interest created by this Agreement and subject to Section 4.7 in the ordinary conduct case of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State RacingIntellectual Property, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following Collateral to be used in violation of any policy of insurance covering the occurrence and during the continuation Collateral in any material respect;
(iii) it shall not change such Grantor’s name, type of an Event organization or jurisdiction of Default, organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, at least ten (10) days prior to any time such change or establishment, identifying such new proposed name or jurisdiction of organization and providing such other information in connection therewith as the Collateral Agent may reasonably request in a manner consistent with this Agreement and (b) taken all actions necessary or reasonably requested by the Collateral Agent to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) 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 otherwise permitted by Section 5.3 of the Note Purchase Agreement;
(v) it shall not knowingly take or permit any Supporting Obligation, (B) direct the Account Debtors under any Receivables action which would reasonably be expected to make payment of all amounts due or to become due to such Grantor thereunder directly to impair the Collateral Agent, (C) 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 ’s rights in the Collateral other payment items from time to time sent to or deposited in such lockbox or other arrangement directly than the granting to the First Lien Collateral Agent, and (D) enforce, at the expense Agent of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and all Liens pursuant to the same extent as such Grantor might have done. If First Lien Security Documents and the granting to the Second Lien 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 all Liens pursuant to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonSecond Lien Security Documents; and
(iiivi) subject to Section 4.7 in the case of Intellectual Property, it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation Collateral except as otherwise permitted under the Note Purchase Agreement, the First Lien Credit Documents or Collateral Support relating to any Receivable in excess of $500,000the Second Lien Credit Documents.
Appears in 1 contract
Samples: Third Lien Pledge and Security Agreement (Vonage Holdings Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may, upon notice to the Grantor or Company Representative on behalf of Grantors, at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract that would reasonably be expected to have a Material Adverse Effect;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and after (D1) enforce, at the expense any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) any new Material Contract is entered into by such Grantor, collection notice thereof as required by Section 5.3 of any such Receivables and to adjust, settle or compromise the amount or payment thereof, Credit Agreement;
(iv) it shall perform in the same manner and all material respects all of its obligations with respect to the same extent as such Grantor might have done. If Material Contracts;
(v) it shall promptly and diligently exercise each material right (except the Collateral Agent notifies any Grantor that it has elected to collect right of termination without 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request consent of the Collateral Agent Agent, such consent not to establish be unreasonably withheld or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instrumentsdelayed) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) upon the occurrence and during the continuance of an Event of Default, each Grantor shall, promptly, with respect to any Non-Assignable Contract in excess effect on the date hereof, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in after the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, occurrence an during the continuance of an Event of Default, such Grantor shall not furnish to Agent true and complete copies (Aincluding any amendments or supplements thereof) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect all Material Contracts to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonwhich it is a party;
(ii) in addition to any rights under the Section of this Agreement relating to Receivables, Agent may at any time following notify, or require any Grantor to so notify, the counterparty on any Material Contract of the security interest of Agent therein. In addition, after the occurrence and during the continuation continuance of an Event of Default, Agent may upon written notice to the Collateral Agent shall have the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor the counterparty to make all payments under the Material Contracts directly to Agent;
(iii) it shall promptly and diligently exercise each material right (except the right of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (Btermination) direct the Account Debtors it may have under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the ReceivablesMaterial Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiiiv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(v) such Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Material Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Material Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Material Contract pursuant to the terms of such Non-Assignable Material Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Material Contract to Secured Party and use its commercially reasonable efforts to obtain such consent as soon as practicable thereafter; provided that if a Grantor is unable to obtain such consent, the requirements of this Section 4.5(b)(v) shall be satisfied where such Grantor delivers a certificate to Agent, which shall be reasonably satisfactory to Agent, certifying that it used its commercially reasonable efforts and was unable to obtain such consent.
Appears in 1 contract
Samples: Pledge and Security Agreement (Euramax International, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partiallyand such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein, any Person liable for the payment thereof, or (D) allow any credit or discount thereonexcept with respect to Permitted Liens;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjust, settle provision of this Agreement 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 violation 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in material respect of any applicable statute, regulation or ordinance or any policy of insurance covering 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure, principal place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (A) notified Collateral Agent in writing, by executing and delivering to keep Collateral Agent a completed Pledge Supplement, substantially in full force the form of Exhibit A attached hereto, together with all applicable Supplements to Schedules thereto, at least thirty (30) days' prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, principal place of business, chief executive office, type of organization, jurisdiction of organization or trade name and effect 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 Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor or any Supporting Obligation officer of such Grantor obtaining knowledge thereof, it shall promptly notify Collateral Agent in writing of any event that may have a Material Adverse Effect on the value of the Collateral or any material portion thereof, (except as otherwise permitted by the Credit Agreement) the ability of any Grantor or Collateral Support relating Agent to dispose of the Collateral or any Receivable material portion thereof, or the rights and remedies of Collateral Agent in excess relation thereto, including, without limitation, the levy of $500,000any legal process against the Collateral or any material portion thereof; and
(v) except otherwise permitted by the Credit Documents, it shall not take or permit any action which could impair Collateral Agent's rights in the Collateral in any material respect.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of the Secured Obligations and termination of all Commitments:
(i) other than in addition to any rights under Section 3.3, the ordinary conduct of its business Collateral Agent may if it deems reasonably necessary at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any ReceivableCollateral Agent may upon written notice to the applicable Grantor, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereofnotify, or (D) allow require any credit or discount thereonGrantor to notify, the counterparty to make all payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall deliver promptly to the Collateral Agent, and in any event within ten Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (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 (to the extent 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 Section 3.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it shall perform in all material respects all of its obligations with respect to the Material Contracts;
(v) it shall promptly and diligently exercise each material right (except the right of termination) it may have under any Material Contract, any Supporting Obligation or Collateral Support, in each case, at any time following 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 continuation continuance of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, may deem necessary or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andadvisable;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Material Contract.
Appears in 1 contract
Samples: Pledge and Security Agreement (Berry Plastics Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees 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) other than in After the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such each Grantor shall not (A) grant deliver promptly to the Joint Collateral Agent a copy of each material demand, notice or document received by it relating in any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect way to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonMaterial Contract;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent each Grantor shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly deliver promptly to the Joint Collateral Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 Joint Collateral Agent (to the extent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iii) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts as it deems appropriate or advisable in the exercise of its business judgment;
(iv) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received in trust for to the benefit of the Collateral Agent hereunder and shall be segregated from other funds of extent such Grantor determines in the exercise of its business judgment that such enforcement is in its best interests, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Joint Collateral Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiiv) 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 Material Contract, in excess accordance with the terms of $500,000such Material Contract; and
(vi) with respect to any Material Contract (other than any agreement, contract license to which any Governmental Authority is a counterparty) that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "NON-ASSIGNABLE CONTRACT"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Joint Collateral Agent and use its commercially reasonable best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following Collateral to be used unlawfully or in violation of any provision of this Agreement, the occurrence and during Credit Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the continuation Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of an Event business (or principal residence if such Grantor is a natural person), chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right at Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, prior to any time 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 (acting upon a Direction of the Requisite Lenders) and (b) taken all actions necessary or advisable to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and any Supporting Obligation, agreed to hereby;
(Biv) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to [reserved];
(v) [reserved];
(vi) upon such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) enforce, at the expense officer of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment Grantor obtaining knowledge thereof, in the same manner and to the same extent as such Grantor might have done. If it shall promptly notify the Collateral Agent notifies in writing of any event that may have a Material Adverse Effect on the value of the Collateral or any portion thereof, the ability of 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 or the Collateral Agent if required, in an Investment Account “controlled” (for purposes to dispose of the UCC) by Collateral or any portion thereof, or the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request rights and remedies of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)in relation thereto, and until so turned overincluding, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect without limitation, the levy of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of legal process against the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor or any portion thereof;
(vii) it shall not adjust, settle take or compromise permit any action which could impair the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCollateral Agent’s rights in the Collateral; and
(iiiviii) it shall use its commercially reasonable efforts to keep in full force not sell, transfer or assign (by operation of law or otherwise) any Collateral except as permitted by this Agreement and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000the Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows until the payment in full of the Secured Obligations and termination of the Commitments:
(i) other than it shall take all commercially reasonable steps in the ordinary conduct United States Patent and Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor, the maintenance of or registration of which is material to its business which is now or shall become included in the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State RacingIntellectual Property including, Pari-Mutuel Wagering and Breeding Law and other Gaming Lawsbut not limited to, those items on Schedule 4.7(A), (C) and except (E) (as otherwise provided in subsection each may be amended or supplemented from time to time);
(ii) it shall promptly (but, except in the case of (II) below, in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (x) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (y) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent (I) a completed Pledge Supplement, together with all Supplements to Schedules thereto, and (II) upon the request of the Collateral Agent, an applicable Grant for recordation with respect thereto in the applicable intellectual property registries, including but not limited to the United States Patent and Trademark Office and the United States Copyright Office, provided, the failure of any Grantor to execute the Pledge Supplement or submit a Grant for recordation with respect to any additional Intellectual Property shall not impair the security interest of the Collateral Agent therein or otherwise adversely affect the rights and remedies of the Collateral Agent hereunder with respect thereto;
(iii) except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, it shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and it shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for Permitted Liens or as otherwise permitted under the Credit Agreement; 106
(iv) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(v) it shall take all commercially reasonable steps to protect the secrecy of all Trade Secrets relating to the products and services sold or delivered under or in connection with the Intellectual Property, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents, except to the extent that a Trade Secret is no longer material or necessary to the business of such Grantor
(vi) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, any Grantor may take (and, at the Collateral Agent's reasonable direction, 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 reasonably necessary or advisable to enforce collection of such Grantor shall not (A) grant any extension or renewal of amounts. Notwithstanding the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Defaultforegoing, the Collateral Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default, to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement obligors with respect to any such an Investment 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 existence 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) other than in the ordinary conduct of its business Joint Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Joint Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Joint Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Joint Collateral Agent;
(2) each Grantor shall deliver promptly to the Joint Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any default or event of default under a Material Contract;
(3) each Grantor shall deliver promptly to the Joint Collateral Agent, (C) 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 (D) 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 twenty (20) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 Joint Collateral Agent (to the extent 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 Section 4(d)(ii)(3), and an explanation of any actions being taken with respect thereto;
(4) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), and until so turned over, all amounts and proceeds the Material Contracts;
(including checks and other instruments5) received by such Grantor it shall exercise in respect a commercially reasonably manner each material right (except the right of the Receivablestermination) it may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjusttake such action as such Grantor or, settle after the occurrence and during the continuance of an Event of a Default, the Joint Collateral Agent may deem necessary 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;
(iii6) 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 Material Contract; and
(7) with respect to any Non-Assignable Contract to which it is a party, each such Grantor shall, unless the relevant restrictions on transfer are overidden by Section 9-406 of the UCC, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Joint Collateral Agent and use its commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
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) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may (subject to the right at any time First Lien Pledge and Security Agreement and the Intercreditor Agreement) upon written notice to (A) the applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) each Grantor shall, within thirty (30) days after entering into any Non-Assignable Contract that is a Material Contract after the Closing Date, request in excess writing the consent of $500,000the counterparty or counterparties to such Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations (other than unmatured contingent obligations), the cancellation or termination in full of the Total Revolving Loan Commitment, the cancellation or expiration of all outstanding Letters of Credit, the expiration or termination of all Secured Hedging Agreements and the expiration or termination of all Secured Cash Management Agreements:
(i) other than in except for the ordinary conduct of its business security interest created by this Agreement, it shall not create or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant suffer to Section 1339 exist any Lien upon or with respect to any of the New York State RacingCollateral, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws)except Permitted Liens, and and, except as otherwise provided in subsection (ii) below, during where the continuance of an Event of Defaultfailure to do so could not be reasonably expected to have a Material Adverse Effect, such Grantor shall not (A) grant defend the Collateral against all Persons at any extension or renewal of the time of payment of claiming any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following Collateral to be used unlawfully or in violation of any provision of this Agreement or, except where the occurrence failure to do so could not be reasonably expected to have a Material Adverse Effect, any applicable statute, regulation or ordinance or any policy of Insurance covering the Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall, promptly after such change, and during the continuation of an Event of Default, in no event later than 15 days after such change (a) notify the Collateral Agent shall have in writing, by executing and delivering to the right at any time Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, identifying such new name, identity, corporate structure, sole place of business (Aor 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) notifytake all actions necessary to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby; and
(iv) it shall not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation, (B) 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, (C) 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 (D) 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 the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each The 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 than dealings therewith;
(2) it shall perform in the ordinary conduct all material respects all of its business obligations with respect to the Receivables;
(3) 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; and
(4) notwithstanding the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of foregoing, the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, Collateral Trustee shall have the right at any time during the continuance of an Event of DefaultDefault to notify, such or require the Grantor shall not (A) grant to notify, any extension or renewal Account Debtor of the time of payment of Collateral Trustee's security interest in the Receivables and any ReceivableSupporting Obligation and, (B) compromise or settle any disputein addition, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to Trustee may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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, Trustee; (C2) notify, or require any the 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, Trustee; and (D3) 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 the 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 an Investment Account “controlled” (for purposes of account maintained under the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
Appears in 1 contract
Samples: Joinder Agreement (Iwo Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit to its knowledge any time following Collateral to be used in violation of any provision of this Agreement or in any material respect unlawfully or in violation of any applicable statute, regulation or ordinance or any policy of insurance covering the occurrence and during the continuation Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of an Event organization or jurisdiction of Default, organization or unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any time such change or establishment (unless the Collateral Agent consents to a shorter period or notice after the fact), 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 (Ab) notifytaken all actions reasonably requested by the Collateral Agent to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, (B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to it shall use such value for such purposes and such Grantor thereunder directly further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall not take or permit any action which could reasonably be expected to materially impair the Collateral Agent, (C) 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 ’s rights in such lockbox or other arrangement directly to the Collateral Agent, other than Permitted Sales and (D) enforce, at the expense granting 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonPermitted Liens; and
(iiivi) it shall use its commercially reasonable efforts to keep in full force not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess the granting of $500,000Permitted Liens.
Appears in 1 contract
Samples: Pledge and Security Agreement (Easton-Bell Sports, Inc.)
Covenants and Agreements. Each The Grantor hereby covenants and agrees that:
(i1) other than except for the security interest created by this Agreement, it shall not 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 Persons at any time claiming any interest therein;
(2) it shall not produce, use or permit any Collateral to be used unlawfully or in material violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral;
(3) without limiting any prohibitions or restrictions on mergers in the ordinary conduct Indenture, it shall not change such Grantor's name, identity, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), sole place of its business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization unless it shall have (a) notified the extension Collateral Trustee in writing at least thirty (30) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of payment terms business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of markers organization or trade name and providing such other information in connection therewith as the Collateral Trustee may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of gaming patrons the Collateral Trustee's security interest in the Collateral granted or intended to be granted and agreed to hereby, which in the case of any merger or other change in corporate structure shall include, without limitation, executing and delivering to the Collateral Trustee a completed Pledge Supplement, substantially in the form of Annex A attached hereto, upon completion of such merger or other change in corporate structure confirming the grant of the security interest hereunder;
(4) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including credit arrangements pursuant claims for labor, materials and supplies) against, the Collateral, except to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided extent the validity thereof is being contested in subsection (ii) below, during the continuance of an Event of Defaultgood faith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (A5) grant 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 the failure to make such payment;
(5) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Trustee in writing of any Receivable, (B) compromise event that may materially and adversely affect the value of the Collateral or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance portion thereof, (C) release, wholly the ability of the Grantor or partially, the Collateral Trustee to dispose of the Collateral or any Person liable for the payment portion thereof, or (D) allow the rights and remedies of the Collateral Trustee in relation thereto, including, without limitation, the levy of any credit legal process against the Collateral or discount thereonany portion thereof;
(ii6) at it shall not take or permit any time following the occurrence and during the continuation of an Event of Default, action which could impair the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest Trustee's rights in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonCollateral; and
(iii7) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except for Permitted Sales.
Appears in 1 contract
Samples: Joinder Agreement (Iwo Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than it shall keep and maintain at its own cost and expense reasonably satisfactory and complete records of the Receivables in all material respects, including, but not limited to, copies of all documentation with respect to all Receivables and records of all material dealings therewith;
(ii) it shall xxxx conspicuously, in form and manner reasonably satisfactory to the ordinary conduct Administrative Agent, all Chattel Paper and Instruments with an appropriate reference to the fact that the Administrative Agent has a security interest therein;
(iii) it shall perform in all material respects all of its business or obligations with respect to the extension of payment terms of markers of gaming patrons Receivables;
(including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and iv) except as otherwise provided in subsection (ii) belowthis subsection, each Grantor shall use commercially reasonable efforts to 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, if an Event of Default has occurred and is continuing, such Grantor shall use commercially reasonable efforts to take such action as such Grantor or the Administrative Agent may deem necessary. Notwithstanding the foregoing, the Administrative Agent shall have the right at any time following the occurrence and during the continuance continuation of an Event of DefaultDefault to notify, such or require any Grantor shall not (A) grant to notify, any extension or renewal Account Debtor of the time of payment of Administrative Agent’s security interest in the Receivables and any ReceivableSupporting Obligation and, (B) compromise or settle any disputein addition, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Administrative Agent shall have the right at any time to may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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 Administrative Agent, ; (C2) 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 Administrative Agent, ; and (D3) 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 Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with and subject to 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 Administrative Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Administrative Agent’s 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 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 Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iiiv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Receivable.
Appears in 1 contract
Samples: Pledge and Security Agreement (TherapeuticsMD, Inc.)
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) it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables in accordance with its ordinary commercial practice;
(ii) it shall mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper and Instruments (other than any delivered to the Collateral Agent as provided herein), with an appropriate reference to the fact that the Collateral Agent has a security interest therein;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary conduct course of its business or as generally conducted by it on and prior to the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws)date hereof, and except as otherwise provided in subsection (iiv) below, during the continuance of following an Event of Default, such Grantor shall not (Aw) grant any extension or renewal of the time of payment of any Receivable, (Bx) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (Cy) release, wholly or partially, any Person liable for the payment thereof, or (Dz) allow any credit or discount thereon;
(iiv) 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 following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may, subject to the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor terms of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, Intercreditor Agreement: (B1) 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, ; (C2) 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 (D3) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Receivable.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees thatwith the several Underwriters as follows:
(a) The Company will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission.
(e) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 those arising out of the New York State Racingoffering or sale of the Shares, Parias contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-Mutuel Wagering issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and Breeding Law secondary trading and other Gaming Lawswill comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the Effective Time of the Registration Statement and except the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as otherwise provided in subsection soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the period ending three years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”), the NYSE MKT (“NYSE”), the Tel Aviv Stock Exchange (“TASE”) or any national securities exchange and (ii) belowfrom time to time such other information concerning the Company as you may reasonably request; provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such document or report on EXXXX.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, during other than clause (iv)) or if this Agreement shall be terminated by the continuance Underwriters because of an Event of Defaultany inability, such Grantor shall not (A) grant any extension failure or renewal refusal on the part of the time Company to perform in all material respects any agreement herein or to comply in all material respects with any of payment the terms or provisions hereof or to fulfill in all material respects any of any Receivablethe conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (B1) compromise offer for sale, sell, pledge or settle otherwise dispose of (or enter into any disputetransaction or device that is designed to, claim or legal proceeding could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), including, without limitation, issuances pursuant to the Controlled Equity OfferingSM Sales Agreement with Cantor Fxxxxxxxxx & Co., or sell or grant options, rights or warrants with respect to any Receivable shares of Common Stock or securities convertible into or exchangeable for less Common Stock (other than the total unpaid balance thereofgrant of options pursuant to option plans existing on the date hereof), (C2) releaseenter into any swap or other derivatives transaction that transfers to another, wholly in whole or partiallyin part, any Person liable for of the payment thereofeconomic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (D2) allow above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any credit amendments, with respect to the registration of any shares of Common Stock or discount thereon;
securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (ii4) at publicly disclose the intention to do any time following of the occurrence foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and during to cause each officer, director and stockholder of the continuation Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of an Event of Default, Exhibit A hereto (the Collateral Agent “Lock-Up Agreements”). The restrictions contained in the preceding sentence shall have the right at any time not apply to (A) notify, or require any Grantor the Firm Shares and Additional Shares to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables be sold hereunder and any Supporting Obligation, (B) direct the Account Debtors under any Receivables issuance of shares of Common Stock, restricted stock units, stock appreciation rights, options to make payment purchase Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans, the Company’s equity incentive plans or other employee compensation plans in effect on the date of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agentthis Agreement, (C) 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 may be amended from time to time sent to increase the number of shares issuable thereunder, or deposited in such lockbox pursuant to currently outstanding restricted stock units, stock appreciation rights, options, warrants or other arrangement directly rights.
(o) Prior to the Collateral AgentClosing Date or the Additional Closing Date, and (D) enforceas the case may be, 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent Underwriters, the Company will furnish to establish or enter into a Control Agreement with respect to such an Investment Account)you, and until so turned overupon your request, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect copies of any unaudited interim consolidated financial statements of the ReceivablesCompany and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any Supporting Obligation action designed, or Collateral Support which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with the NYSE and TASE all documents and notices required by the NYSE and the TASE of companies that have or will issue securities that are traded on the NYSE and the TASE.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be received in trust the same entity as the transfer agent) 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Biotime Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than (A) in addition to any rights under Section 3.3, the ordinary conduct of its business Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein and (B) in addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 3.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "Non-Assignable Contract"), each Grantor shall, within thirty (30) days of the Closing Date with respect to any Non-Assignable Contract in excess effect on the Closing Date and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Collateral Agent and use its commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Master Pledge and Security Agreement (Focal Communications Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in after the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect in addition to any Receivable for less than rights under the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation Section of an Event of Defaultthis Agreement relating to Receivables, the Collateral Agent shall have the right may at any time notify, or require any Grantor to (A) so notify, the counterparty on any Material Contract of the security interest of the Collateral Agent therein and may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account)the Material Contracts, except to the extent 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;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract;
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter; and
(viii) on or before the Closing Date, it shall use its best efforts to deliver to the Collateral Agent duly completed Notices of Assignment, pursuant to the provisions of the Assignment of Claims Act of 1940, 31 U.S.C. § 3727(c), with respect to each contract of such Grantor with the United States government or any branch, agency, bureau or subdivision thereof involving remaining payments of at least $500,00010,000,000 (or such smaller dollar amount such that at all times 90% of the total remaining payments for all such contracts are subject to such Notices of Assignment). Each Grantor shall update each Notice of Assignment delivered hereunder to the extent required by law, and provide Notices of Assignment with respect to any additional contracts between such Grantor and the United States government, or any branch, agency, bureau or subdivision thereof involving remaining payments of at least $10,000,000 (or such smaller dollar amount such that at all times 90% of the total remaining payments for all such contracts are subject to such Notices of Assignment).
Appears in 1 contract
Samples: Pledge and Security Agreement (Services International LLC)
Covenants and Agreements. Each Grantor hereby covenants The Guarantor and agrees thatthe Trust jointly ------------------------ and severally covenant and agree with each of the Underwriters:
(a) That the Guarantor will furnish without charge to the Underwriters a copy of the Registration Statement, including all documents incorporated by reference therein and exhibits filed with the Registration Statement (other than exhibits which are incorporated by reference and have previously been so furnished), and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus, any documents incorporated by reference therein at or after the date thereof (including documents from which information has been so incorporated) and any supplements and amendments thereto as each Underwriter may reasonably request so long as such Underwriter is required to deliver a prospectus;
(b) That the Guarantor will cause the Final Supplemented Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) and will promptly advise the Underwriters (i) other than when any amendment to the Registration Statement shall have been filed; provided, that, with respect to documents filed pursuant -------- to the Exchange Act and incorporated by reference into the Registration Statement, such notice shall only be required during such time as the Underwriters are required in the ordinary conduct reasonable opinion of its business or Xxxxx Xxxxxxxxxx, counsel for the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant Underwriters, to Section 1339 of the New York State Racingdeliver a prospectus, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during of any request by the continuance of an Event of Default, such Grantor shall not (A) grant Commission for any extension or renewal amendment of the time Registration Statement, (iii) of payment the issuance by the Commission of any Receivablestop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose, and (Biv) compromise of the receipt by the Guarantor or settle the Trust of any dispute, claim or legal proceeding notification with respect to the suspension of the qualification of the Securities for sale in any Receivable jurisdiction or the initiation or threatening of any proceeding for less than such purpose. So long as any Underwriter is required in the total unpaid balance thereofreasonable opinion of Xxxxx Xxxxxxxxxx to deliver a prospectus, (C) releasethe Guarantor will not file any amendment to the Registration Statement or supplement to the Prospectus unless the Guarantor has furnished one copy of such amendment or supplement to Xxxxxxx, wholly Sachs & Co. and to Xxxxx Xxxxxxxxxx, and, if such amendment or partially, any Person liable for supplement is to be filed on or prior to the payment thereofTime of Delivery, or (D) allow any credit under circumstances where the Underwriters are required in the reasonable opinion of Xxxxx Xxxxxxxxxx, to deliver a Prospectus, the Underwriters or discount thereonXxxxx Xxxxxxxxxx, shall not reasonably have objected thereto. If the Commission shall issue a stop order suspending the effectiveness of the Registration Statement, the Guarantor will take such steps to obtain the lifting of that order as in the best judgment of the Guarantor are not contrary to the interests of the Guarantor;
(iic) That if, at any time following when in the occurrence and during reasonable opinion of Xxxxx Xxxxxxxxxx the continuation Prospectus is required by law to be delivered by an Underwriter or a dealer, any event shall occur as a result of an Event which it is necessary, in the reasonable opinion of DefaultXxxxx Xxxxxxxxxx or counsel for the Guarantor, to amend or supplement the Collateral Agent shall have Prospectus or modify the right at any time information incorporated by reference therein in order to (A) notifymake the statements therein, in light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest if it shall be necessary in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection reasonable opinion of any such Receivables counsel, to amend or supplement the Prospectus or modify such information to comply with law, the Guarantor will forthwith (i) prepare and furnish, at its own expense, to adjust, settle or compromise the amount or payment thereof, in the same manner Underwriters and to the same extent as such Grantor might dealers (whose names and addresses the Underwriters will furnish to the Guarantor) to whom Securities may have done. If been sold by the Collateral Agent notifies Underwriters and to any Grantor that it has elected other dealers upon reasonable request, either amendments or supplements to collect the Receivables in accordance Prospectus or (ii) file with the preceding sentenceCommission documents incorporated by reference in the Prospectus, which shall be so supplied to the Underwriters and such dealers, in either case so that the statements in the Prospectus as so amended, supplemented or modified will not, in light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(d) That the Guarantor will endeavor to qualify, at its expense, the Securities, and, to the extent required or advisable, the Guarantee and the Junior Subordinated Notes, for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request and to pay all filing fees, reasonable expenses and legal fees in connection therewith and in connection with the determination of the eligibility for investment of the Securities; provided, that the Guarantor shall not be required to qualify as -------- a foreign corporation or a dealer in securities or to file any consents to service of process under the laws of any jurisdiction;
(e) That the Guarantor will make generally available to its security holders and the Securityholders as soon as practicable an earnings statement of the Guarantor covering a twelve-month period beginning after the Time of Delivery which shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158 under the Act).
(f) That during the period beginning on the date of this Agreement and continuing to and including the Time of Delivery, the Guarantor and the Trust will not offer, sell, contract to sell or otherwise dispose of any Securities, any payments of Receivables received by such Grantor shall be forthwith (and in security convertible into or exchangeable into or exercisable for Securities or Subordinated Debentures or any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor debt securities substantially similar to the Collateral Agent if requiredSubordinated Debentures or equity securities substantially similar to the Securities (except for the Subordinated Debentures and the Securities issued pursuant to this Agreement), in an Investment Account “controlled” (for purposes without the prior written consent of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Underwriters.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in after the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, Collateral Agent may, upon written notice to the applicable Grantor, notify, or require such Grantor shall not (A) grant to notify, the counterparty to make all payments under any extension or renewal Material Contract of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect such Grantor directly to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral Agent;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the such Grantor shall deliver promptly to Collateral Agent shall have the right at a copy of each material demand, notice or document received by it relating in any time way to any Material Contract;
(Aiii) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly shall deliver promptly to the Collateral Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 Collateral Agent (to the extent 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 Section 4.5(b)(iii));
(iv) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to the Material Contracts of such an Investment Account), Grantor;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor 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; andCollateral Agent may deem necessary;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract of such Grantor; and
(vii) such Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract that is a Material Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract that is a Material Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to such Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Collateral Agent and use commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
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 accurate and complete records of the Receivables in all material respects, including, but not limited to, the originals of all documentation with respect to all Receivables, to the extent reasonably required for enforcement by the Administrative Agent, and records of all payments received and all credits granted on the Receivables, all merchandise returned and all other dealings therewith;
(ii) at the Administrative Agent’s request, it shall mark conspicuously, in form and manner reasonably satisfactory to the Administrative Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Administrative Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Administrative Agent has a security interest therein;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables, any Supporting Obligations and any Collateral Support;
(iv) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect on the value of such Receivable as Collateral. Other than in the ordinary conduct course of its business or as generally conducted by it on and prior to the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws)date hereof, and except as otherwise provided in subsection (iiv) below, during the continuance of an Event of Default, such Grantor shall not (Aw) grant any extension or renewal of the time of payment of any Receivable, (Bx) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (Cy) release, wholly or partially, any Person liable for the payment thereof, or (Dz) allow any credit or discount thereon;; and
(iiv) 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, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right at any time to notify, or require any Grantor to notify, any Account Debtor of the Administrative 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 Administrative Agent shall have the right at any time to may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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 Administrative Agent, ; (C2) 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 Administrative Agent, ; and (D3) 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 Administrative Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the immediately 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 Administrative Agent if required, in an Investment the Administrative Agent’s Account maintained under the sole dominion and control (within the meaning of the common law) or “controlledcontrol” (for purposes within the meaning of Section 9-104 of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)Administrative 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 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 Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
Appears in 1 contract
Samples: Pledge and Security Agreement (Clovis Oncology, 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, all originals (or copies thereof) of 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) at the reasonable request of Collateral Agent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper and Instruments (other than any delivered to the Collateral Agent as provided herein) with the following legend referring to chattel paper or instruments as applicable: “This [chattel paper] [instrument] is subject to the security interest of Xxxxxxx Sachs Credit Partners L.P. and any sale, transfer, assignment or encumbrance of this [chattel paper] [instrument] violates the rights of such secured party.”;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall notify Collateral Agent promptly of the assertion of (i) any claims, offsets, defenses or counterclaims by any Account Debtor, Credit Card Issuer or Credit Card Processor or any disputes with any of such persons or any settlement, adjustment or compromise thereof, to the extent any of the foregoing exceeds $75,000 in any one case or $200,000 in the aggregate and (ii) all material adverse information relating to the financial condition of any Account Debtor, Credit Card Issuer or Credit Card Processor. No credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any Account Debtor, Credit Card Issuer or Credit Card Processor except in the ordinary conduct course of a Grantor’s business in accordance with the current practices of such Grantor as in effect on the date hereof. At any time that a Default or an Event of Default exists or has occurred and is continuing, no Grantor shall settle, adjust or compromise any claim, offset, counterclaim or dispute with any Account Debtor, Credit Card Issuer, Credit Card Processor, other than with the consent, at its business or option (and subject to its rights under the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 Intercreditor Agreement), of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and Collateral Agent.
(v) except as otherwise provided in subsection (ii) belowthis subsection, during each Grantor shall continue to collect all amounts due or to become due to such Grantor under the continuance of an Event of DefaultReceivables 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 not (A) grant any extension take such action as such Grantor or renewal of the time of payment of any ReceivableCollateral Agent may deem necessary or advisable. Notwithstanding the foregoing, (B) compromise or settle any disputepursuant to the Credit Card Acknowledgments delivered pursuant to Section 4.3(b)(ix), claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for Collateral Agent shall have the payment thereof, or (D) allow any credit or discount thereon;
(ii) right at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to to: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) direct the Account Debtors under any Receivables Credit Card Issuer or Credit Card Processor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 subject to the Collateral Agent, Intercreditor Agreement; and (D2) 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 such 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)as otherwise directed by 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 such 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) [reserved]
(vii) it shall (a) observe and perform all material terms, covenants, conditions and provisions of the Credit Card Agreements to be observed and performed by it at the times set forth therein, (b) at all times maintain in full force and effect the Credit Card Agreements and not terminate, cancel, surrender, modify, amend, waive or release any of the Credit Card Agreements, or consent to or permit to occur any of the foregoing; except, that, any Grantor may terminate or cancel any of the Credit Card Agreements in the ordinary course of business of such Grantor; provided, that such Grantor give Collateral Agent not less than fifteen (15) days prior written notice of its intention to so terminate or cancel any of the Credit Card Agreements, (c) not enter into any new Credit Card Agreements with any new Credit Card Issuers unless (x) Collateral Agent shall have received not less than thirty (30) days prior written notice of the intention of such Grantor to enter into such agreement (together with such other information with respect thereto as Collateral Agent may request) and (y) such Grantor delivers or causes to be delivered to Collateral Agent, a Credit Card Acknowledgment in favor of Collateral Agent, (d) give Collateral Agent immediate written notice of any Credit Card Agreement entered into by such Grantor after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as Collateral Agent may request, and (e) furnish to Collateral Agent, promptly upon the request of Collateral Agent, such information and evidence as Agent may require from time to time concerning the observance, performance and compliance by such Grantor or other party or parties thereto with the terms, covenants or provisions of the Credit Card Agreements.
(viii) it shall notify Collateral Agent promptly of: (i) any notice of a material default by such Grantor under any of the Credit Card Agreements or of any default which has a reasonable likelihood of resulting in the Credit Card Issuer or Credit Card Processor ceasing to make payments or suspending payments to such Grantor, (ii) any notice from any Credit Card Issuer or Credit Card Processor that such person is ceasing or suspending, or will cease or suspend, any present or future payments due or to become due to such Grantor from such person, or that such person is terminating or will terminate any of the Credit Card Agreements, and (iii) the failure of such Grantor to comply with any material terms of the Credit Card Agreements or any terms thereof which has a reasonable likelihood of resulting in the Credit Card Issuer or Credit Card Processor ceasing or suspending payments to such Grantor.
(ix) it shall use its commercially reasonable best efforts to keep deliver or cause to be delivered to Collateral Agent, in full force form and effect any Supporting Obligation or substance satisfactory to Collateral Support relating Agent, a Credit Card Acknowledgment with respect to any Receivable in excess of $500,000Credit Card Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than except for the security interest created by this Agreement and subject to Section 4.7 in the ordinary conduct case of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State RacingIntellectual Property, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following Collateral to be used in violation of any policy of insurance covering the occurrence and during the continuation Collateral in any material respect;
(iii) it shall not change such Grantor’s name, type of an Event organization or jurisdiction of Default, organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, at least ten (10) days prior to any time such change or establishment, identifying such new proposed name or jurisdiction of organization and providing such other information in connection therewith as the Collateral Agent may reasonably request in a manner consistent with this Agreement and (b) taken all actions necessary or reasonably requested by the Collateral Agent to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) 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 otherwise permitted by Section 5.3 of the Credit Agreement;
(v) it shall not knowingly take or permit any Supporting Obligation, (B) direct the Account Debtors under any Receivables action which would reasonably be expected to make payment of all amounts due or to become due to such Grantor thereunder directly to impair the Collateral Agent, (C) 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 ’s rights in the Collateral other payment items from time to time sent to or deposited in such lockbox or other arrangement directly than the granting to the First Lien Collateral Agent, and (D) enforce, at the expense Agent of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and all Liens pursuant 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonFirst Lien Security Documents; and
(iiivi) subject to Section 4.7 in the case of Intellectual Property, it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation Collateral except as otherwise permitted under the Credit Agreement or Collateral Support relating to any Receivable in excess of $500,000the First Lien Credit Documents.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Vonage Holdings Corp)
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) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjustprovision of this Agreement or any applicable statute, settle regulation or compromise ordinance or any policy of insurance covering 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business, chief executive office, type of organization or jurisdiction of organization unless it shall have (a) notified the Joint Collateral Agent in writing, by executing and delivering to keep the Joint Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation the form of Exhibit A attached hereto, together with all Supplements to Schedules necessary to notify the Joint Collateral Agent of changes, additions, dispositions or substitutions of the Collateral Support relating thereto, at least ten (10) Business Days prior to any Receivable 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 excess connection therewith as the Joint 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 $500,000the Joint Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby; and
(iv) it shall not take or permit any action which could materially impair the Joint Collateral Agent's rights in the Collateral.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjustprovision of this Agreement or any applicable statute, settle regulation or compromise ordinance or any policy of insurance covering 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any Receivable 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 excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that may have a Material Adverse Effect on the value of the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(v) it shall not take or permit any action which could impair the Collateral Agent's rights in the Collateral; and
(vi) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales.
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), the cancellation or termination of all Commitments, the expiration or termination of all Hedge Agreements and the cancellation or expiration of all outstanding Letters of Credit:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) each Grantor shall, within thirty (30) days after entering into any Non-Assignable Contract that is a Material Contract after the Closing Date, request in excess writing the consent of $500,000the counterparty or counterparties to such Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor and Holdings, as applicable, hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such no Grantor shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall take all steps reasonably necessary to defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at each Grantor and Holdings shall not produce, use or permit any time following the occurrence and during the continuation Collateral or Holdings Pledged Collateral, as applicable, to be used unlawfully or in violation of an Event any provision of Defaultthis Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral Agent or Holdings Pledged Collateral, in each case, except as such unlawful use or violation could not reasonably be expected to have a Material Adverse Effect;
(iii) no Grantor or Holdings shall change its name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the right Administrative Agent in writing, by executing and delivering to the Administrative Agent a completed Pledge Supplement together with all Supplements to Schedules thereto, at least five (5) days prior to any time 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 Administrative Agent may reasonably request and (b) taken all actions reasonably necessary to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Administrative Agent’s security interest in the Receivables Collateral and any Supporting Obligationthe Holdings Pledged Collateral intended to be granted and agreed to hereby;
(iv) each Grantor and Holdings shall pay promptly when due all federal and other material taxes, assessments and governmental charges or levies imposed upon, and all material claims (Bincluding claims for labor, materials and supplies) direct against, the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly Collateral and the Holdings Pledged Collateral, as applicable, except to the Collateral extent the validity thereof is being contested in good faith;
(v) no Grantor or Holdings shall take or permit any action which could materially impair the Administrative Agent, (C) 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 ’s rights in such lockbox or other arrangement directly to the Collateral Agentor the Holdings Pledged Collateral, and (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonapplicable; and
(iiivi) it no Grantor or Holdings shall use its commercially reasonable efforts to keep in full force and effect sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation Collateral or Collateral Support relating to any Receivable in excess of $500,000the Holdings Pledged Collateral, as applicable, except as expressly permitted by the Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Edgen Group Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in After the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect in addition to any Receivable for less than rights under the total unpaid balance thereofSection of this Agreement relating to Receivables, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) Parity Lien Collateral Trustee may at any time following the occurrence and during the continuation of an Event of Defaultnotify, or require any Grantor to so notify, the counterparty on any Material Contract of the security interest of the Parity Lien Collateral Agent shall have Trustee therein and may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under the Material Contracts directly to the Parity Lien Collateral Trustee;
(ii) each Grantor shall deliver promptly to the Parity Lien Collateral Trustee a copy of each material demand or notice received by it relating in any Account Debtor way to any Material Contract which involves any claim, event or other circumstance the consequences of which could reasonably be expected to have a Material Adverse Effect;
(iii) upon the request of the Parity Lien Collateral Agent’s security interest Trustee, each Grantor shall deliver promptly to the Parity Lien Collateral Trustee (1) information with respect to any Material Contract of such Grantor that is terminated or amended in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due a manner that is materially adverse to such Grantor thereunder directly to the Collateral Agent, or (C2) 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 (D) enforce, at the expense of new Material Contract that is entered into by such Grantor, collection including, a written statement describing such Material Contract.
(iv) it shall perform in all material respects all 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account)the Material Contracts except to the extent 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;
(v) it shall promptly and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivablesdiligently exercise each material right it may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary 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 thereonadvisable; and
(iiivi) 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 Material Contract, except where, in excess of $500,000its business judgment, it concludes that loss or relinquishment will not have a Material Adverse Effect.
Appears in 1 contract
Samples: Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during the continuation Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of an Event business (or principal residence if such Grantor is a natural person), chief executive office, type of Default, organization or jurisdiction of organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral 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 time 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 (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes;
(Bv) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to [Reserved];
(vi) upon such Grantor thereunder directly 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 the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action, other than as permitted under the Credit Agreement, which would reasonably be expected to materially impair the Collateral Agent, (C) 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 (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, ’s rights in the same manner and to the same extent Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as such Grantor might have done. If the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any time claiming any interest therein (other than any such claim with respect to Permitted Liens or an immaterial portion of the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral);
(ii) at it shall not produce, use, expressly permit or otherwise permit (to its knowledge) any time following Collateral to be used in violation of any provision of this Agreement or in any material respect unlawfully or in violation of any applicable statute, regulation or ordinance or any material policy of insurance covering the occurrence and during Collateral;
(iii) except with respect to any transaction permitted under the continuation Term Loan Agreement which results in such Grantor ceasing to be a Credit Party, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business, chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Term Collateral Agent shall have in writing, by executing and delivering to the right at Term Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, within thirty (30) days following any time such change or establishment (unless the Term Collateral Agent, in its reasonable discretion, consents to a longer period of notice), identifying such new proposed name, identity, corporate structure, sole place of business (Aor 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 Term Collateral Agent may reasonably request and (b) notifytaken all actions reasonably requested by the Term Collateral Agent to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Term Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) it shall not take or permit any Supporting Obligation, (B) direct action which could reasonably be expected to impair the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Term Collateral Agent’s rights in the Collateral Agent, (C) 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 other than Permitted Sales and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent, and (D) enforce, at the expense granting 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonPermitted Liens; and
(iiiv) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except for Permitted Sales.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence Collateral;
(iii) it shall not change such Grantor’s name, chief executive office, type of organization or jurisdiction of organization unless permitted by the Credit Agreement and during the continuation of an Event of Default, the provided that it shall have (a) notified Collateral Agent shall have in writing, by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the right at any time form of Exhibit A attached hereto, together with all Supplements to (ASchedules thereto, no later than the deadline set forth in Section 5.1(m) notify, or require any Grantor to notify, any Account Debtor of the Credit Agreement, identifying such new proposed name, chief executive office, type of organization, jurisdiction of organization and providing such other information in connection therewith as Collateral Agent may reasonably request and (b) taken all actions necessary or reasonably requested by Collateral Agent to maintain the continuous validity, perfection and the same or better priority of Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes;
(Bv) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to upon such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) enforce, at the expense officer of such GrantorGrantor obtaining knowledge thereof, collection it shall promptly notify Collateral Agent in writing of any such Receivables and to adjust, settle or compromise event that may have a Material Adverse Effect on 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request value of the Collateral or any portion thereof, the ability of any Grantor or Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 dispose 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 portion thereof, or 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 portion thereof;
(vi) it shall not take or permit any action which could impair Collateral Agent’s rights in the Collateral; and
(iiivii) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except as otherwise permitted by the Credit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Lifecore Biomedical, Inc. \De\)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(iA) other than except as permitted under the Secured Agreements, it shall not do any act or omit to do any act whereby any of the Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, or unenforceable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein or herein;
(B) it shall take all reasonable steps in the ordinary conduct United States Patent and Trademark Office and the United States Copyright Office, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by such Grantor and material to its business which is now or shall become included in the Collateral constituting Intellectual Property (except for such Intellectual Property with respect to which such Grantor has determined in the exercise of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor commercially reasonable judgment that it shall not (Aseek registration) grant any extension or renewal of the time of payment of any Receivableincluding, but not limited to, those items on Schedule 4.2(A), (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, and (C);
(C) releaseit shall (i) within 15 calendar days after either the end of each calendar year or the request of the Collateral Agent (at the written direction of the Acting Secured Parties), wholly report to Collateral Agent (1) any new application that has been filed during the preceding calendar year in the name of such Grantor to register any Intellectual Property not constituting Excluded Collateral with the United States Patent and Trademark Office or partiallythe United States Copyright Office, and (2) any Person liable for new registration of such Intellectual Property by any such office, in each case, by executing and delivering to Collateral Agent a completed Security Agreement Supplement, substantially in the payment thereofform of Exhibit A attached hereto, together with a supplement to Schedule 4.2 and (ii) provide Collateral Agent, within ten (10) days prior to any filing described in clause (i)
(1) of this Paragraph (C), written notice of such filing; provided, however, that any failure to comply with the requirements of this clause (ii) shall not constitute a Default if (I) the actions previously taken in connection with this Agreement are effective, and following such filing will continue to be effective, to create and perfect the security interest intended to be created hereby in the Intellectual Property to which such filing relates, (II) such filing relates to Intellectual Property that is not reasonably expected to be material to the business of such Grantor at the time of such filing, or (DIII) allow any credit or discount thereon;
such failure is subsequently remedied at a time when no other Lien (iiother than a Permitted Lien) at any time following on the occurrence and during the continuation of an Event of Default, the Collateral Agent Intellectual Property to which such filing relates shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables attached and any Supporting Obligation, (B) 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, (C) 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 perfected; and
(D) 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 an Investment Account “controlled” (for purposes of the UCC) requested by the Collateral Agent (it being understood that each Grantor agrees such request to promptly comply with any reasonable be given at the written request of the Acting Secured Parties) in connection with the actions required pursuant to Section 4.2(b)(C), it shall promptly execute and deliver to Collateral Agent any document required to establish acknowledge, confirm, register, record, or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor perfect Collateral Agent's interest in respect any part of the Receivablesnew Intellectual Property, any Supporting Obligation whether now owned 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby 4.1 The Issuer covenants and agrees thatthat whenever the Issuer shall publish or make available to its shareholders or to the public (by filing with any regulatory authority, securities exchange or otherwise) any information which could reasonably be expected to be material in the context of this Agreement and the transactions contemplated hereby, the Issuer shall notify the Dealers as to the nature of such information, shall make such information available to the Dealers upon request to permit distribution to investors and prospective investors and shall take such action as may be necessary to ensure that the representation and warranty contained in Clause 3(e) is true and accurate on the dates contemplated by such Clause. Such notification may be by means of electronic communication, including, but not limited to, by email and/or directing the Dealers' attention to information on-line.
4.2 The Issuer covenants and agrees with each Dealer that if that Dealer or any of its affiliates, directors, officers or employees, or any person who controls that Dealer for the purpose of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a "Relevant Party") incurs any liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added tax) (a "Loss") as a result of, in connection with or based upon any breach or alleged breach of the representations, warranties, covenants or agreements made by the Issuer in this Agreement or any untrue statement or alleged untrue statement of any material fact contained in the Disclosure Documents or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Issuer will pay to that Dealer on demand an amount equal to such Loss. No Dealer or Arranger shall have any duty or obligation, whether as fiduciary or trustee for any Relevant Party or otherwise, to recover any such payment or to account to any other person for any amounts paid to it under this Clause.
4.3 If any action, proceeding, claim or demand shall be brought or asserted against a Relevant Party in respect of which recovery may be sought from the Issuer, the relevant Dealer shall, upon becoming aware of the same, promptly notify the Issuer in writing. The Issuer may participate at its own expense in the defence of the action. If it elects within a reasonable time after receipt of the notice, the Issuer may assume the defence of the action with legal advisers chosen by it and approved by the Relevant Party defendant in the action, subject to the payment by the Issuer of all fees and expenses relating thereto, unless the Relevant Party reasonably objects to the assumption on the ground that there may be legal defences available to it which are different from or in addition to that available to the Issuer. If the Issuer assumes the defence of the action, the Issuer shall not be liable for any fees and expenses of the legal advisers of the Relevant Party incurred thereafter in connection with the action. In no event shall the Issuer be liable for any fees and expenses of more than one legal adviser or firm of legal advisers of the Relevant Party in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. The Issuer shall not be liable pursuant to Clause 4.2 in respect of any settlement of any such action effected without the consent of the Issuer (such consent not to be unreasonably withheld or delayed).
4.4 The Issuer will:
(ia) other than in pay, or reimburse the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons Arranger for, all reasonable out-of-pocket costs and expenses (including credit arrangements pursuant United Kingdom value added tax and any other taxes or duties thereon and fees and disbursements of counsel to Section 1339 the Arranger) incurred by the Arranger in connection with the preparation, negotiation, printing, execution and delivery of the New York State Racing, Pari-Mutuel Wagering this Agreement and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonall documents contemplated by this Agreement;
(iib) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notifypay, or require reimburse each Dealer for, all reasonable out-of-pocket costs and expenses (including United Kingdom value added tax and any Grantor other taxes or duties thereon and fees and disbursements of counsel to notifysuch Dealer) incurred by such Dealer in connection with the enforcement or protection of its rights under this Agreement and all documents contemplated by this Agreement;
(c) pay all stamp, registration and other taxes and duties (including any Account Debtor interest and penalties thereon or in connection therewith) except those arising solely as a result of the Collateral Agent’s security interest Dealers' default which may be payable upon or in connection with the creation and issue of the Notes and the execution, delivery and performance of the Agreements; and
(d) notify including by means of electronic communication, including, but not limited to, by email and/or by directing the Dealers' attention to information on-line, each Dealer of any change in the Receivables identity of or the offices of the Issue Agent and/or any Paying Agent and any Supporting Obligation, (B) direct material change or amendment to or termination of the Account Debtors under Agency Agreement or the Deed of Covenant not later than ten days prior to the making of any Receivables to make payment of all amounts due such change or amendment or such termination; and it will not permit to become due effective any such change, amendment or termination which could reasonably be expected to affect adversely the interests of any holder of any Notes then outstanding.
4.5 The Issuer shall take such Grantor thereunder directly steps (in conjunction with the Dealers, where appropriate) to the Collateral Agentensure that any laws and regulations or requirements of any governmental agency, (C) notify, authority or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to institution which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items may from time to time sent be applicable to or deposited in such lockbox or other arrangement directly to the Collateral Agent, and (D) 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 Note shall be forthwith (fully observed and complied with and in particular (but without limitation) that neither the Issuer nor any event within two of its affiliates (2as defined in Rule 405 under the Securities Act) Business Days) deposited by such Grantor nor any person acting on its or its affiliates' behalf has engaged or will engage in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement directed selling efforts with respect to such an Investment Account)the Notes, and until so turned overthey have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act. Terms used in this sub-paragraph have the meanings given to them by Regulation S under the Securities Act.
4.6 The Issuer covenants and agrees promptly to notify including by means of electronic communication, all amounts and proceeds (including checks and including, but not limited to, by email and/or directing the Dealers' attention to information on-line, the Dealers of any change in the ratings given by Standard & Poor's Rating Services of the Issuer's debt or upon it becoming aware that such ratings are listed on "Creditwatch" or other instruments) received similar publication of formal review by such Grantor in the relevant rating agency.
4.7 In respect of any issue of Notes, if the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit issue of the Collateral Agent hereunder and shall Notes would otherwise constitute a contravention of section 19 of the FSMA, the Issuer will issue such Notes only if the following conditions apply (or the Notes can otherwise be segregated from other funds issued without contravention of such Grantor and such Grantor shall not adjust, settle or compromise section 19 of the amount or payment FSMA):
(a) the relevant Dealer covenants in the terms set out in paragraph 3(b) of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonSchedule 2; and
(iiib) the redemption value of each such Note is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than Sterling), and no part of any Note may be transferred unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
4.8 Each Dealer represents, covenants and agrees that it shall use its commercially reasonable efforts has complied with and will comply with the selling restrictions set out in Schedule 2. Subject to keep compliance with those restrictions, each Dealer is hereby authorised by the Issuer to circulate the Disclosure Documents to purchasers or potential purchasers of the Notes.
4.9 The obligations of each Dealer contained in full force this Agreement are several. In addition, each of the Dealers agrees that the Arranger has only acted in an administrative capacity to facilitate the establishment and/or maintenance of the Programme and effect has no responsibility to it for: (a) the adequacy, accuracy, completeness or reasonableness of any Supporting Obligation representation, warranty, undertaking, agreement, statement or Collateral Support relating information in the Information Memorandum, this Agreement or any information provided in connection with the Programme; or (b) the nature and suitability to it of all legal, tax and account matters and all documentation in connection with the Programme or any Receivable in excess issue of $500,000Notes.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under Section 3.3, the ordinary conduct of its business Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent, ;
(Cii) 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 it shall perform in 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 (D) enforce, at the expense material respects all 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(iii) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiiiv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(v) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "Non-Assignable Contract"), each Grantor shall, within forty-five (45) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Collateral Agent for the benefit of Secured Parties and use its reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants The Guarantor and agrees thatthe Trust jointly ------------------------ and severally covenant and agree with each of the Underwriters:
(a) That the Guarantor will furnish without charge to the Underwriters a copy of the Registration Statement, including all documents incorporated by reference therein and exhibits filed with the Registration Statement (other than exhibits which are incorporated by reference and have previously been so furnished), and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus, any documents incorporated by reference therein at or after the date thereof (including documents from which information has been so incorporated) and any supplements and amendments thereto as each Underwriter may reasonably request so long as such Underwriter is required to deliver a prospectus;
(b) That the Guarantor will cause the Final Supplemented Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) and will promptly advise the Underwriters (i) other than when any amendment to the Registration Statement shall have been filed; provided, that, with respect to documents filed pursuant -------- to the Exchange Act and incorporated by reference into the Registration Statement, such notice shall only be required during such time as the Underwriters are required in the ordinary conduct reasonable opinion of its business Xxxxx Xxxxxxxxxx, counsel for the Underwriters, to deliver a prospectus, (ii) of any request by the Commission for any amendment of the Registration Statement, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the extension institution or threatening of payment terms any proceeding for that purpose, and (iv) of markers the receipt by the Guarantor or the Trust of gaming patrons any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. So long as any Underwriter is required in the reasonable opinion of Xxxxx Xxxxxxxxxx to deliver a prospectus, the Guarantor will not file any amendment to the Registration Statement or supplement to the Prospectus unless the Guarantor has furnished one copy of such amendment or supplement to Xxxxxxx, Sachs & Co. and to Xxxxx Xxxxxxxxxx, and, if such amendment or supplement is to be filed on or prior to the Time of Delivery, or under circumstances where the Underwriters are required in the reasonable opinion of Xxxxx Xxxxxxxxxx, to deliver a Prospectus, the Underwriters or Xxxxx Xxxxxxxxxx, shall not reasonably have objected thereto. If the Commission shall issue a stop order suspending the effectiveness of the Registration Statement, the Guarantor will take such steps to obtain the lifting of that order as in the best judgment of the Guarantor are not contrary to the interests of the Guarantor;
(c) That if, at any time when in the reasonable opinion of Xxxxx Xxxxxxxxxx the Prospectus is required by law to be delivered by an Underwriter or a dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of Xxxxx Xxxxxxxxxx or counsel for the Guarantor, to amend or supplement the Prospectus or modify the information incorporated by reference therein in order to make the statements therein, in light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if it shall be necessary in the reasonable opinion of any such counsel, to amend or supplement the Prospectus or modify such information to comply with law, the Guarantor will forthwith (i) prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Guarantor) to whom Securities may have been sold by the Underwriters and to any other dealers upon reasonable request, either amendments or supplements to the Prospectus or (ii) file with the Commission documents incorporated by reference in the Prospectus, which shall be so supplied to the Underwriters and such dealers, in either case so that the statements in the Prospectus as so amended, supplemented or modified will not, in light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(d) That the Guarantor will endeavor to qualify, at its expense, the Securities, and, to the extent required or advisable, the Guarantee and the Junior Subordinated Notes, for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request and to pay all filing fees, reasonable expenses and legal fees in connection therewith and in connection with the determination of the eligibility for investment of the Securities; provided, that the Guarantor shall not be required to qualify as -------- a foreign corporation or a dealer in securities or to file any consents to service of process under the laws of any jurisdiction;
(e) That the Guarantor will make generally available to its security holders and the Securityholders as soon as practicable an earnings statement of the Guarantor covering a twelve-month period beginning after the Time of Delivery which shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including credit arrangements Rule 158 under the Act).
(f) That during the period beginning on the date of this Agreement and continuing to and including the Time of Delivery, the Guarantor and the Trust will not offer, sell, contract to sell or otherwise dispose of any Securities, any security convertible into or exchangeable into or exercisable for Securities or Subordinated Debentures or any debt securities substantially similar to the Subordinated Debentures or equity securities substantially similar to the Securities (except for the Subordinated Debentures and the Securities issued pursuant to Section 1339 this Agreement), without the prior written consent of the Underwriters.
(g) That the Guarantor and the Trust will use best efforts to effect the listing of the Securities on the New York State RacingStock Exchange; if the Securities are exchanged for Subordinated Debentures, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal Guarantor will use its best efforts to effect the listing of the time of payment of Subordinated Debentures on any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than exchange on which the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Securities are then listed.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it that relates in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary 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;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) each Grantor shall, to the extent reasonably requested by the Collateral Agent within thirty (30) days after entering into any Non-Assignable after the Closing Date, request in excess writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby Pledgor covenants and agrees thatthat during the term of this Agreement:
(ia) Without the prior written consent of Secured Party, Pledgor will not sell, assign, transfer, pledge, or otherwise encumber any of its rights in or to the Pledged Collateral, or any unpaid dividends, interest or other than distributions or payments with respect to the Pledged Collateral or xxxxx x Xxxx in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements Pledged Collateral, except for a sale to AKP pursuant to Section 1339 9.2(b) of the New York State RacingLLC Agreement;
(b) In the event that AKP transfers its limited liability company membership interest in the Pledged Entity to Pledgor under Section 9.3 of the LLC Agreement, Pari-Mutuel Wagering then the Pledgor will cause (i) the Pledged Entity to expressly agree to the terms and Breeding Law conditions of the Secured Note and other Gaming Laws), to agree to take all actions necessary or desirable to further any of the obligations of either the Pledgor or ZP Holdings to BioMed pursuant to the Secured Note and except as otherwise provided in subsection (ii) below, during the continuance Pledged Entity’s assets to become subject to the terms of an Event Security Agreement of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;even date herewith between BioMed and ZP Holdings.
(iic) Pledgor will, at any time following the occurrence its expense, promptly execute, acknowledge and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables deliver all such instruments and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of take all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 actions as Secured Party from time to time sent may reasonably request in order to or deposited ensure to Secured Party the benefits of the Liens in such lockbox or other arrangement directly to the Collateral Agent, and (D) 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 Pledged Collateral intended to be created by this Agreement, including the filing of any necessary UCC financing statements, which may be filed by Secured Party with or (to the extent as permitted by law) without the signature of Pledgor, and will cooperate with Secured Party, at Pledgor’s expense, in obtaining all necessary approvals and making all necessary filings under federal, state, local or foreign law in connection with such Grantor might have done. If Liens or any sale or transfer of the Pledged Collateral;
(d) Pledgor has and will defend the title to the Pledged Collateral Agent notifies any Grantor that it has elected to collect and the Receivables in accordance with the preceding sentence, any payments Liens of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor Secured Party in the exact form received, duly indorsed by such Grantor Pledged Collateral against the claim of any Person (except for AKP pursuant to the Collateral Agent if required, in an Investment Account “controlled” (for purposes Section 9.2(b) of the UCCLLC Agreement) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to and will maintain and preserve such an Investment 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 thereonLiens; and
(iiie) it Pledgor hereby irrevocably consents to the transfer and conveyance of the Pledged LLC Interests in the event that the Secured Party exercises its rights pursuant to Section 8(a) in the Event of Default and Pledgor hereby irrevocably consents to the amendment to the LLC Agreement pursuant to Section 2.6 thereof, which shall use include such modifications to the LLC Agreement as the Pledgor deems reasonably necessary to effect the exercise of its commercially reasonable efforts rights hereunder. Pledgor further covenants to keep in full force and effect take any Supporting Obligation or Collateral Support relating such actions as may be reasonably necessary to any Receivable in excess effectuate the rights of $500,000the Secured Party pursuant to Section 8.
Appears in 1 contract
Samples: Security Agreement (ZP Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than it shall perform in the ordinary conduct all material respects all of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding obligations with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonReceivables;
(ii) 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; and
(iii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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, (C) 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, Agent and (D2) 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 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
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 accurate and complete records of the Receivables, as is customarily maintained under similar circumstances by Persons of established reputation engaged in similar businesses, and in any event in conformity with GAAP;
(ii) [reserved]
(iii) other than in the ordinary conduct course of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (iiiv) below, upon the occurrence and during the continuance continuation of an Event of Default, such Grantor shall not (Av) amend, modify, terminate or waive any provision of any Receivable in excess of $600,000 individually for any invoice or $5,000,000 in the aggregate for any account (“Material Receivables”) in any manner which could reasonably be expected to have a material adverse effect on the value of such Material Receivable as Collateral, (w) grant any extension or renewal of the time of payment of any Material Receivable, (Bx) compromise or settle any dispute, claim or legal proceeding with respect to any Material Receivable for less than the total unpaid balance thereof, (Cy) release, wholly or partially, any Person liable for the payment thereof, or (Dz) allow any credit or discount thereon;
(iiiv) except as otherwise provided in this subsection, each Grantor may continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and may exercise each right it may have under any Receivable any Supporting Obligation or Collateral Support, in each case, at its own expense; provided, however, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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, ; (C2) 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 (D3) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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;
(iiiv) except as it shall determine otherwise in the ordinary course of business, it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Material Receivable; and
(vi) it shall notify the Collateral Agent in writing the next Quarterly Reporting Date following receipt of any Material Receivable in excess respect of $500,000which 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 (Easton-Bell Sports, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any ReceivableAgent may upon written notice to the applicable Grantor, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty that such counterparty is to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall deliver promptly to the Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in Grantor, a written statement describing such event, with copies of such material amendments or new contracts, provided that if any such Material Contract contains restrictions on the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes disclosure of the UCCterms thereof, the Agent shall agree to keep the terms of such Material Contract confidential in accordance with the terms thereof;
(iv) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently in accordance with its reasonable business judgment exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiivi) 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 Material Contract; and
(vii) with respect to any Non-Assignable Contract, each Grantor shall, unless the relevant restrictions on transfer are overridden by Section 9-406 of the UCC, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the Exhibit E-22 consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Agent and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Security Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following Collateral to be used unlawfully or in violation of any provision of this Security Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the occurrence and during the continuation Collateral in a material manner;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business, chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement together with all supplements to schedules thereto, at least ten (10) Business Days prior to any time 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 necessary or advisable to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be 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 or, to the extent any such event involves Accounts or Inventory, immediately, notify the Collateral Agent in writing of any event that may have a Material Adverse Effect on the value of the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent’s rights in the Collateral;
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except for Permitted Sales;
(ix) it shall deliver to the Collateral Agent annually contemporaneously with delivery of the annual perfection opinion required under Section 12.02(c) of the Indenture an Officer’s Certificate (A) confirming that there has been no change in the Americas 91413044 17 information in the schedules attached hereto (as such schedules may be amended or supplemented from time to time) or (B) direct identifying such changes and attaching amendments or supplements to the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly appropriate schedules attached hereto; and
(x) it shall furnish to the Collateral Agent, (C) 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 from time to time sent to statements and schedules (including any amendments or deposited in such lockbox or other arrangement directly supplements to the Collateral Agent, schedules attached hereto) further identifying and (D) enforce, at describing the expense of such Grantor, collection of any such Receivables assets 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 property of such Grantor and such Grantor shall not adjustother reports in connection therewith as the Collateral Agent may reasonably request, 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
(iii) it shall use its commercially all in reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000detail.
Appears in 1 contract
Samples: Pledge and Security Agreement (Xerium Technologies Inc)
Covenants and Agreements. Each Grantor hereby covenants The Guarantor and agrees thatthe Trust jointly and severally covenant and agree with each of the Underwriters:
(a) That the Guarantor will furnish without charge to the Underwriters a copy of the Registration Statement, including all documents incorporated by reference therein and exhibits filed with the Registration Statement (other than exhibits which are incorporated by reference and have previously been so furnished), and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus, any documents incorporated by reference therein at or after the date thereof (including documents from which information has been so incorporated) and any supplements and amendments thereto as each Underwriter may reasonably request so long as such Underwriter is required to deliver a prospectus;
(b) That the Guarantor will cause the Final Supplemented Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) and will promptly advise the Underwriters (i) other than when any amendment to the Registration Statement shall have been filed; provided, that, with respect to documents filed pursuant to the Exchange Act and incorporated by reference into the Registration Statement, such notice shall only be required during such time as the Underwriters are required in the ordinary conduct reasonable opinion of its business Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, to deliver a prospectus, (ii) of any request by the Commission for any amendment of the Registration Statement, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the extension institution or threatening of payment terms any proceeding for that purpose, and (iv) of markers the receipt by the Guarantor or the Trust of gaming patrons any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. So long as any Underwriter is required in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP to deliver a prospectus, the Guarantor will not file any amendment to the Registration Statement or supplement to the Prospectus unless the Guarantor has furnished one copy of such amendment or supplement to ML and to Xxxxx Xxxxxxxxxx LLP, and, if such amendment or supplement is to be filed on or prior to the Time of Delivery, or under circumstances where the Underwriters are required in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP, to deliver a Prospectus, the Underwriters or Xxxxx Xxxxxxxxxx LLP, shall not reasonably have objected thereto. If the Commission shall issue a stop order suspending the effectiveness of the Registration Statement, the Guarantor will take such steps to obtain the lifting of that order as in the best judgment of the Guarantor are not contrary to the interests of the Guarantor;
(c) That if, at any time when in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP the Prospectus is required by law to be delivered by an Underwriter or a dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP or counsel for the Guarantor, to amend or supplement the Prospectus or modify the information incorporated by reference therein in order to make the statements therein, in light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if it shall be necessary in the reasonable opinion of any such counsel, to amend or supplement the Prospectus or modify such information to comply with law, the Guarantor will forthwith (i) prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Guarantor) to whom Securities may have been sold by the Underwriters and to any other dealers upon reasonable request, either amendments or supplements to the Prospectus or (ii) file with the Commission documents incorporated by reference in the Prospectus, which shall be so supplied to the Underwriters and such dealers, in either case so that the statements in the Prospectus as so amended, supplemented or modified will not, in light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(d) That the Guarantor will endeavor to qualify, at its expense, the Securities, and, to the extent required or advisable, the Guarantee and the Subordinated Debentures, for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request and to pay all filing fees, reasonable expenses and legal fees in connection therewith and in connection with the determination of the eligibility for investment of the Securities; provided, that the Guarantor shall not be required to qualify as a foreign corporation or a dealer in securities or to file any consents to service of process under the laws of any jurisdiction;
(e) That the Guarantor will make generally available to its security holders and the Securityholders as soon as practicable an earning statement of the Guarantor covering a twelve-month period beginning after the Time of Delivery which shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including credit arrangements Rule 158 under the Act).
(f) That during the period beginning on the date of this Agreement and continuing to and including the Time of Delivery, the Guarantor and the Trust will not offer, sell, contract to sell or otherwise dispose of any Securities, any security convertible into or exchangeable into or exercisable for Securities or Subordinated Debentures or any debt securities substantially similar to the Subordinated Debentures or equity securities substantially similar to the Securities (except for the Subordinated Debentures and the Securities issued pursuant to Section 1339 this Agreement), without the prior written consent of ML.
(g) That the Guarantor and the Trust will use best efforts to effect the listing of the Securities on the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal Stock Exchange within thirty days of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable date hereof; if the Securities are exchanged for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of DefaultSubordinated Debentures, the Collateral Agent shall have Guarantor will use its best efforts to effect the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor listing of the Collateral Agent’s security interest in Subordinated Debentures on any exchange on which the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Securities are then listed.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest be used in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjust, settle provision of this Agreement 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 material respect unlawfully or in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 violation of any Receivableapplicable statute, regulation or release wholly ordinance or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andpolicy of insurance covering the Collateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any Receivable 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 and providing such other information in excess connection therewith as the Collateral Agent may reasonably request and (b) taken all actions reasonably requested by the Collateral Agent to maintain the continuous validity, perfection and the same or better priority of $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall not take or permit any action which could impair the Collateral Agent's rights in the Collateral other than Permitted Sales and the granting of Permitted Liens; and
(vi) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Achievement Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(iA) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and such Grantor shall (A) defend the Collateral against all Persons at any time claiming any interest therein and (B) file such financing or continuation statements, or amendments thereto, as may be requested by the Collateral Agent to preserve the perfection of the security interests granted hereunder (other than any 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 total unpaid balance thereof, Collateral;
(C) release, wholly it shall not change Grantor's name or partially, any Person liable for the payment thereof, or jurisdiction of organization unless it shall have (Da) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the notified Collateral Agent shall have in writing, by executing and delivering to Collateral Agent a completed Security Agreement Supplement, substantially in the right form of Exhibit A attached hereto, together with a supplement to Schedule 4.1, at least thirty (30) days prior to any time such change, identifying such new proposed name or jurisdiction of organization and (b) taken all actions necessary to (A) notify, or require any Grantor to notify, any Account Debtor maintain the continuous validity and perfection of the Collateral Agent’s 's security interest in the Receivables and any Supporting Obligation, Collateral intended to be granted hereby;
(BD) direct the Account Debtors under any Receivables to it shall make payment of (i) all amounts due or 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, (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 a Permitted Lien;
(E) upon such Grantor thereunder directly to or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify Collateral Agent in writing of the levy of any legal process against the Collateral Agent, or any portion thereof; and
(CF) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) reasonably requested by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request at the written direction of the Acting Secured Parties, it shall provide to Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received report identifying any new Collateral acquired 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 and not previously disclosed hereunder and shall (i) provide such other information and take such other actions in connection therewith as Collateral Agent at the written direction of the Acting Secured Parties may reasonably request and (ii) to the extent not inconsistent with any other applicable provisions of this Agreement (including, without limitation, Sections 4.4 and 5.1), take all actions necessary to establish and maintain the validity and perfection of Collateral Agent's security interest in such Collateral intended to 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000granted hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for time claiming any interest therein adverse to the payment thereof, or (D) allow any credit or discount thereonCollateral Agent;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during Collateral if such violation or noncompliance could reasonably be expected to have, individually or in the continuation aggregate, a Material Adverse Effect;
(iii) except as listed on Schedule 4.1.A.1, it shall not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of an Event organization or jurisdiction of Default, organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to applicable Schedules showing such change thereto, at least thirty (30) days prior to any time 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 reasonably requested by the Collateral Agent to (A) notifymaintain the continuous validity, or require any Grantor to notify, any Account Debtor perfection and at least the same priority of the Collateral Agent’s 's security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) except as otherwise permitted under the Credit Agreement it shall not file any Supporting Obligationcertificates of domestication, transfer or continuance in any jurisdiction other than the jurisdiction set forth opposite such Grantor's name on Schedule 4.1(A);
(Bv) direct the Account Debtors under it shall not take or permit any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to action which could materially impair the Collateral Agent, (C) notify, 's rights in the Collateral subject to Grantors' rights to dispose of 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 abandon rights in such lockbox or other arrangement directly the Collateral as to the extent permitted hereunder or under the Credit Agreement or the right to grant Permitted Liens; and
(vi) it shall not sell, transfer, exclusively license or assign (by operation of law or otherwise) any Collateral Agent, and (D) 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 the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Credit Agreement.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted WEIL:\96958198\8\71605.0155 Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence Collateral;
(iii) it shall not change such Grantor’s name, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless permitted by the Credit Agreement and during the continuation of an Event of Default, the provided that it shall have (a) notified Collateral Agent shall have in writing, by executing and delivering to Collateral Agent a completed Pledge Supplement, substantially in the right form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any time such change or establishment, identifying such new proposed name, chief executive office, type of organization, jurisdiction of organization or trade name and providing such other information in connection therewith as Collateral Agent may reasonably request and (b) taken all actions necessary or reasonably requested by Collateral Agent to (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if Collateral Agent or any Supporting Obligation, (B) direct the Account Debtors under any Receivables Secured Party gives value to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) notify, or require enable any Grantor to notifyacquire rights in or the use of any Collateral, each Person maintaining a lockbox it shall use such value for such purposes;
(v) upon such Grantor 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 (D) enforce, at the expense officer of such GrantorGrantor obtaining knowledge thereof, collection it shall promptly notify Collateral Agent in writing of any such Receivables and to adjust, settle or compromise event that may have a Material Adverse Effect on 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request value of the Collateral or any portion thereof, the ability of any Grantor or Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 dispose 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 portion thereof, or 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 portion thereof;
(vi) it shall not take or permit any action which could impair Collateral Agent’s rights in the Collateral; and
(iiivii) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except as otherwise permitted by the Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and upon obtaining knowledge thereof, it shall defend the Collateral against all Persons (other than the total unpaid balance thereofSecured Parties) that have instituted, (C) release, wholly or partiallymade a non-frivolous threat in writing of, any Person liable for Adverse Proceeding claiming an interest therein adverse to the payment thereof, or (D) allow any credit or discount thereonCollateral Agent;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during Collateral if such violation or noncompliance could reasonably be expected to have, individually or in the continuation aggregate, a Material Adverse Effect;
(iii) it shall not change such Grantor’s legal name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of an Event organization or jurisdiction of Default, organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to applicable Schedules showing such change thereto, no more than thirty (30) days (or such longer period as may be agreed by the Collateral Agent) after 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 reasonably determined to be necessary by the Collateral Agent to maintain the continuous validity, perfection and at any time to (A) notify, or require any Grantor to notify, any Account Debtor least the same priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and any Supporting Obligation, (B) direct the Account Debtors under any Receivables agreed to make payment of all amounts due or hereby; provided that with respect to become due to such Grantor thereunder directly to the Collateral Agent, (C) notify, or require any Grantor that is an Immaterial Restricted Subsidiary, non-compliance with the foregoing covenant shall not result in a Default pursuant to notifySection 8.1 of the Credit Agreement for a period of ten (10) Business Days after the receipt of the notice pursuant to Section 8.1(c) of the Credit Agreement, 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 (D) 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 so long as such Grantor might have done. If is diligently pursuing in good faith the Collateral Agent notifies any Grantor that it has elected cure or correction of such non-compliance continuously during such period;
(iv) except as otherwise permitted under the Credit Agreement or as consented 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (such consent not to be unreasonably withheld or delayed), it being understood shall not file any certificates of domestication, transfer or continuance in any jurisdiction other than the jurisdiction set forth opposite such Grantor’s name on Schedule 4.1(A); provided that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such any Grantor that is an Investment Account)Immaterial Restricted Subsidiary, and until non-compliance with the foregoing covenant shall not result in a Default pursuant to Section 8.1 of the Credit Agreement for a period of ten (10) Business Days after the receipt of the notice pursuant to Section 8.1(c) of the Credit Agreement, so turned over, all amounts and proceeds (including checks and other instruments) received by long as such Grantor is diligently pursuing in respect of good faith the Receivables, any Supporting Obligation cure or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds correction of such Grantor and non-compliance continuously during 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 thereonperiod; and
(iiiv) it shall use its commercially reasonable efforts not take or permit any action which could materially impair the Collateral Agent’s rights in the Collateral, subject to keep Grantors’ rights to dispose of or abandon rights in full force the Collateral to the extent permitted hereunder or under the Credit Agreement and effect any Supporting Obligation or Collateral Support relating the right to any Receivable in excess of $500,000grant Permitted Liens.
Appears in 1 contract
Samples: Pledge and Security Agreement (Covanta Holding 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, all originals (or copies thereof) of 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) at the reasonable request of Collateral Agent, it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper and Instruments (other than any delivered to the Collateral Agent as provided herein) with the following legend referring to chattel paper or instruments as applicable: “This [chattel paper] [instrument] is subject to the security interest of Xxxxxxx Sachs Credit Partners L.P. and any sale, transfer, assignment or encumbrance of this [chattel paper] [instrument] violates the rights of such secured party.”;
(iii) it shall perform in all material respects all of its obligations with respect to the Receivables;
(iv) it shall notify Collateral Agent promptly of the assertion of (i) any claims, offsets, defenses or counterclaims by any Account Debtor, Credit Card Issuer or Credit Card Processor or any disputes with any of such persons or any settlement, adjustment or compromise thereof, to the extent any of the foregoing exceeds $75,000 in any one case or $200,000 in the aggregate and (ii) all material adverse information relating to the financial condition of any Account Debtor, Credit Card Issuer or Credit Card Processor. No credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any Account Debtor, Credit Card Issuer or Credit Card Processor except in the ordinary conduct course of a Grantor’s business in accordance with the current practices of such Grantor as in effect on the date hereof. At any time that a Default or an Event of Default exists or has occurred and is continuing, no Grantor shall settle, adjust or compromise any claim, offset, counterclaim or dispute with any Account Debtor, Credit Card Issuer, Credit Card Processor, other than with the consent, at its business or option (and subject to its rights under the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 Intercreditor Agreement), of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and Collateral Agent.
(v) except as otherwise provided in subsection (ii) belowthis subsection, during each Grantor shall continue to collect all amounts due or to become due to such Grantor under the continuance of an Event of DefaultReceivables 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 not (A) grant any extension take such action as such Grantor or renewal of the time of payment of any ReceivableCollateral Agent may deem necessary or advisable. Notwithstanding the foregoing, (B) compromise or settle any disputepursuant to the Credit Card Acknowledgments delivered pursuant to Section 4.3(b)(ix), claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for Collateral Agent shall have the payment thereof, or (D) allow any credit or discount thereon;
(ii) right at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to to: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) direct the Account Debtors under any Receivables Credit Card Issuer or Credit Card Processor to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 subject to the Collateral Agent, Intercreditor Agreement; and (D2) 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 such 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)as otherwise directed by 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 such 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) [reserved]
(vii) it shall (a) observe and perform all material terms, covenants, conditions and provisions of the Credit Card Agreements to be observed and performed by it at the times set forth therein, (b) at all times maintain in full force and effect the Credit Card Agreements and not terminate, cancel, surrender, modify, amend, waive or release any of the Credit Card Agreements, or consent to or permit to occur any of the foregoing; except, that, any Grantor may terminate or cancel any of the Credit Card Agreements in the ordinary course of business of such Grantor; provided, that such Grantor give Collateral Agent not less than fifteen (15) days prior written notice of its intention to so terminate or cancel any of the Credit Card Agreements, (c) not enter into any new Credit Card Agreements with any new Credit Card Issuers unless (x) Collateral Agent shall have received not less than thirty (30) days prior written notice of the intention of such Grantor to enter into such agreement (together with such other information with respect thereto as Collateral Agent may request) and (y) such Grantor delivers or causes to be delivered to Collateral Agent, a Credit Card Acknowledgment in favor of Collateral Agent, (d) give Collateral Agent immediate written notice of any Credit Card Agreement entered into by such Grantor after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as Collateral Agent may request, and (e) furnish to Collateral Agent, promptly upon the request of Collateral Agent, such information and evidence as Agent may require from time to time concerning the observance, performance and compliance by such Grantor or other party or parties thereto with the terms, covenants or provisions of the Credit Card Agreements.
(viii) it shall notify Collateral Agent promptly of: (i) any notice of a material default by such Grantor under any of the Credit Card Agreements or of any default which has a reasonable likelihood of resulting in the Credit Card Issuer or Credit Card Processor ceasing to make payments or suspending payments to such Grantor, (ii) any notice from any Credit Card Issuer or Credit Card Processor that such person is ceasing or suspending, or will cease or suspend, any present or future payments due or to become due to such Grantor from such person, or that such person is terminating or will terminate any of the Credit Card Agreements, and (iii) the failure of such Grantor to comply with any material terms of the Credit Card Agreements or any terms thereof which has a reasonable likelihood of resulting in the Credit Card Issuer or Credit Card Processor ceasing or suspending payments to such Grantor.
(ix) it shall use its commercially reasonable best efforts to keep deliver or cause to be delivered to Collateral Agent, in full force form and effect any Supporting Obligation or substance satisfactory to Collateral Support relating Agent, a Credit Card Acknowledgement with respect to any Receivable in excess of $500,000Credit Card Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest be used in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjust, settle provision of this Agreement 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 material respect unlawfully or in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 violation of any Receivableapplicable statute, regulation or release wholly ordinance or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andpolicy of insurance covering the Collateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Revolving Collateral Agent in writing, by executing and delivering to keep the Revolving Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any Receivable such change or establishment (unless the Revolving Collateral Agent, in excess its reasonable discretion, consents to a shorter period of $500,000notice after the fact), 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 Revolving Collateral Agent may reasonably request and (b) taken all actions reasonably requested by the Revolving Collateral Agent to maintain the continuous validity, perfection and the same or better priority of the Revolving Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Revolving Collateral Agent or any Revolving Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall not take or permit any action which could impair the Revolving Collateral Agent's rights in the Collateral other than Permitted Sales and the granting of Permitted Liens;
(vi) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales; and
(vii) within thirty (30) days after the Closing Date, it will establish a deposit account to be the Asset Sale Proceeds Account, and upon such establishment the Borrower will be the sole owner thereof, and the Borrower shall, within such thirty (30) day time period deliver to the Revolving Collateral Agent a legal opinion in form and substance reasonably satisfactory to it, that the Revolving Collateral Agent has a valid and perfected security interest in the Asset Sale Proceeds Account.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under Section 4.3, upon the ordinary conduct occurrence and during the continuance of its business a Default or an Event of Default, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant Collateral Agent may at any time notify, or require any Grantor to Section 1339 so notify, the counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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 thereonadvisable; and
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess Material Contract. Letter of $500,000.Credit Rights. Americas 91413044 29
Appears in 1 contract
Samples: Pledge and Security Agreement (Xerium Technologies Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Secured Party may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Secured Party therein; provided, Pari-Mutuel Wagering the Secured Party shall not take any of the actions set forth in this sentence if and Breeding Law to the extent such action is prohibited under any federal or state law. In addition, after the occurrence and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any ReceivableSecured Party may upon written notice to the applicable Grantor, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent, Secured Party;
(Cii) notify, or require any each 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 shall deliver promptly to the Collateral AgentSecured Party a copy of each material demand, and notice or document received by it relating to any Material Contract;
(Diii) 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 each Grantor shall deliver promptly 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 sentenceSecured Party, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” Secured Party (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent terms of any such Material Contract and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivablesdiligently exercise each material right it may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary 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 thereonadvisable; and
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract.
(vii) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a “Non-Assignable Contract"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter; provided, however, that the foregoing shall not apply to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions of any relevant jurisdiction) or any other applicable law.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Xo Communications Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect addition to any Receivable for less than rights under the total unpaid balance thereofSection of this Agreement relating to Receivables, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following upon the occurrence and during the continuation of an Event of Default, the Revolving Collateral Agent shall have the right may at any time notify, or require any Grantor to (A) so notify, the counterparty on any Material Contract of the security interest of the Revolving Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Revolving Collateral Agent may upon written notice to the applicable Grantor, but subject to the terms of the Intercreditor Agreement, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Revolving Collateral Agent;
(ii) each Grantor shall deliver promptly to the Revolving Collateral Agent a copy of each material written demand, notice or document received by it relating in any way to any Material Contract;
(iii) each Grantor shall deliver promptly to the Revolving Collateral Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 (to the extent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts in a manner consistent with its reasonable business judgment;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense and shall be segregated from other funds of pursuant to its reasonable business judgment, and in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Revolving Collateral Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any material Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any material Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to such Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Revolving Collateral Agent and use its reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under Section 3.3, the ordinary conduct of its business Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 3.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract;
(vii) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "NON-ASSIGNABLE CONTRACT"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the date hereof, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter; and
(viii) it shall use its best efforts, after the date hereof, not to be a party to any agreement, contract or license that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory).
Appears in 1 contract
Samples: Security and Pledge Agreement (Delta I Acquisition Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under Section 4.3 of this Agreement relating to Receivables, the ordinary conduct of its business Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Agreement of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Agreements directly to the Collateral Agent;
(ii) it shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Agreement;
(Ciii) 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 it shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Agreement of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Agreement is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent terms of any such Material Agreement, provided no prohibition on delivery shall be effective if it were bargained for by such Grantor with the intent of avoiding compliance with this Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to the Material Agreements;
(v) it shall promptly and diligently exercise each material right (except the right of termination and where the failure to exercise any such an Investment Account), right could not have a Material Adverse Effect) it may have under any Material Agreement and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any related Supporting Obligation or Collateral Support Support, in each case, at its own expense and, in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Agreement;
(vii) it shall use its best efforts to prohibit anti-assignment provisions in excess any Material Agreements on a going-forward basis; and
(viii) it shall not enter into any Intellectual Property License which prevents the exercise of $500,000remedies by the Collateral Agent with respect to any Inventory or Equipment covered by such Intellectual Property License.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in After the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect in addition to any Receivable for less than rights under the total unpaid balance thereofSection of this Agreement relating to Receivables, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) Priority Lien Collateral Trustee may at any time following the occurrence and during the continuation of an Event of Defaultnotify, or require any Grantor to so notify, the counterparty on any Material Contract of the security interest of the Priority Lien Collateral Agent shall have Trustee therein and may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, the counterparty to make all payments under the Material Contracts directly to the Priority Lien Collateral Trustee;
(ii) each Grantor shall deliver promptly to the Priority Lien Collateral Trustee notice of any Account Debtor Material Contract as required pursuant to Section 5.1 of the Credit Agreement;
(iii) each Grantor shall deliver promptly to the Priority Lien Collateral Agent’s security interest Trustee (1) information with respect to any Material Contract of such Grantor that is terminated or amended in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due a manner that is materially adverse to such Grantor thereunder directly to the Collateral Agent, or (C2) 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 (D) enforce, at the expense of new Material Contract that is entered into by 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 required 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 an Investment Account “controlled” (for purposes Section 5.1 of the UCCCredit Agreement;
(iv) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account)the Material Contracts except to the extent 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;
(v) it shall promptly and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivablesdiligently exercise each material right it may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary 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 thereonadvisable; and
(iiivi) 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 Material Contract, except where, in excess of $500,000its business judgment, it concludes that loss or relinquishment will not have a Material Adverse Effect.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during Collateral, in any case in any material respect;
(iii) except to the continuation extent permitted by the Financing Agreement, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business, chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Counterpart Agreement, as applicable, together with all Supplements to Schedules thereto, at least ten (10) days prior to any such change or establishment (or such shorter period of time as the Required Lenders may permit in their sole discretion), 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, at the direction of the Required Lenders, may reasonably request in writing and (b) taken all actions reasonably necessary or advisable to (A) notifymaintain the continuous validity, or require any Grantor to notify, any Account Debtor perfection and the same priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) it shall pay promptly when due all material 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 that such Grantor shall in any Supporting Obligationevent pay such taxes, (B) direct assessments, charges, levies or claims prior to the Account Debtors date of any proposed sale under any Receivables 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 payment of all amounts due or to become due to such payment;
(v) upon such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) enforce, at the expense officer of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment Grantor obtaining knowledge thereof, in the same manner and to the same extent as such Grantor might have done. If it shall promptly notify the Collateral Agent notifies in writing of any event that could be reasonably expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of 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 or the Collateral Agent if required, in an Investment Account “controlled” (for purposes to dispose of the UCC) by Collateral or any material portion thereof, or the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request material rights and remedies of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)in relation thereto, and until so turned overincluding, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect without limitation, the levy of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of legal process against the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor or any material portion thereof;
(vi) it shall not adjust, settle take or compromise permit any action which could reasonably be expected to impair the amount Collateral Agent’s rights in the Collateral except for any Permitted Lien or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereondisposition that is expressly permitted by the Financing Agreement; and
(iiivii) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except as otherwise expressly permitted by the Financing Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Danimer Scientific, Inc.)
Covenants and Agreements. Each Grantor hereby The Company further covenants and agrees with each Underwriter that:
(a) The Company will:
(i) other than file the Prospectus and any amendment or supplement thereto with the Commission in the ordinary conduct of its business or manner and within the extension of payment terms of markers of gaming patrons time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, the Company (including credit arrangements pursuant to Section 1339 x) will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, and the respective rules and regulations of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during Commission thereunder to the extent necessary to permit the continuance of an Event sales of Defaultor dealings in the Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (y) will not file with the Commission any amendment or supplement to the Base Prospectus (including the Prospectus or any Preliminary Prospectus), any amendment to the Registration Statement or any Free Writing Prospectus unless the Underwriters previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing and the Representative shall have given its consent to such Grantor filing, which shall not (A) grant be unreasonably withheld. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Representative or counsel for the Underwriters, any extension amendments to the Registration Statement or renewal amendments or supplements to the Prospectus that may be necessary to comply with law, in the reasonable judgment of the Representative or counsel for the Underwriters, in connection with the distribution of the Securities by the Underwriters. The Company has advised or will advise, as applicable, the Underwriters, promptly after receiving notice thereof, of the time of payment of when the Registration Statement or any Receivable, (B) compromise amendment thereto has been filed or settle become effective or the Prospectus or any dispute, claim amendment or legal proceeding with respect supplement thereto has been filed and will provide evidence satisfactory to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable Representative and counsel for the payment thereof, Underwriters of each such filing or (D) allow any credit or discount thereoneffectiveness;
(ii) at any time following without charge, so long as a prospectus relating to the occurrence and during Securities is required to be delivered under the continuation Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of an Event of Defaulteach Preliminary Prospectus, the Collateral Agent shall have Prospectus and each Issuer Free Writing Prospectus or any amendment or supplement thereto as the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonRepresentative may reasonably request; and
(iii) it shall advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of (w) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any amendment thereto or any order preventing or suspending the use its of any Preliminary Prospectus or the Prospectus or any Free Writing Prospectus or any amendment or supplement thereto, (x) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (y) the institution, threatening or contemplation of any proceeding for any purpose identified in the preceding clause (w) or (x), or (z) any request made by the Commission for amending the Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use commercially reasonable efforts to keep prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(b) The Company will cooperate with the Underwriters in full force qualifying the Securities for offering and sale in each jurisdiction as the Representatives shall designate including, but not limited to, pursuant to applicable state securities (“Blue Sky”) laws of certain states of the United States of America or other U.S. jurisdictions, and the Company shall maintain such qualifications in effect for so long as may be necessary in order to complete the placement of the Securities; provided, however, that the Company shall not be obliged to file any Supporting Obligation general consent to service of process or Collateral Support to qualify as a foreign corporation or as a securities dealer in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(c) The Company agrees that, unless it obtains the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule B hereto, any Receivable electronic road show and term sheets relating to the Securities containing customary transaction announcement or pricing information. Any such Free Writing Prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in excess respect of $500,000timely filing with the Commission, legending and record keeping. For the avoidance of doubt, Underwriter Free Writing Prospectuses that are not required to be filed by the Company with the Commission or retained by the Company under Rule 433 are permitted hereby.
(d) The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If, at any time prior to the final date when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Registration Statement, the Pricing Disclosure Package or the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus to comply with the Securities Act or the Exchange Act or the respective rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify the Underwriters thereof and will promptly, at its own expense, but subject to the second sentence of Section 3(a)(i) hereof: (x) prepare and file with the Commission an amendment to the Registration Statement or amendment or supplement to the Pricing Disclosure Package or the Prospectus which will correct such statement or omission or effect such compliance; and (y) supply any amended Registration Statement or amended or supplemented Pricing Disclosure Package or Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request. If there occurs an event or development as a result of which the Pricing Disclosure Package or the Prospectus would include an untrue statement of material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Underwriters so that any use of the Pricing Disclosure Package or the Prospectus may cease until it is amended or supplemented. The foregoing two sentences do not apply to statements in or omissions from the Pricing Disclosure Package or the Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.
(e) The Company will make generally available to the Company’s securityholders and to the Underwriters as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act, including Rule 158 thereunder. If the Company makes such earnings statement publicly available by press release or filing with the Commission, it shall be deemed to have satisfied its obligations under this paragraph (e).
(f) The Company will apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Prospectus.
(g) The Company agrees to pay the required Commission filing fees relating to the Securities in accordance with Rules 456 and 457 of the Securities Act.
(h) During a period of 60 days from the date of the Prospectus, the Company will not, without the prior written consent of Barclays, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (C) any shares of Common Stock or restricted stock units issued or options to purchase Common Stock granted pursuant to employee benefit plans of the Company approved by the Board of Directors of the Company, (D) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (E) any shares of Common Stock issued in mergers, acquisitions or other business combinations. Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will issue an earnings release or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 60-day restricted period, the restrictions imposed in this clause (i) shall continue to apply until the expiration of the 18-day period beginning on the date of the issuance of the earnings release or the occurrence of the material news or material event, unless Barclays waives, in writing, such extension. The Representative on behalf of the several Underwriters, may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees 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) other than in After the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such each Grantor shall not (A) grant deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect way to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonMaterial Contract;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent each Grantor shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(a)(ii)), and an explanation of any actions being taken with respect thereto;
(iii) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts as it deems appropriate or advisable in the exercise of its business judgment;
(iv) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support to the extent such Grantor determines in the exercise of its business judgment that such enforcement is in its best interests, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiiv) 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 Material Contract, in excess accordance with the terms of $500,000.such Material Contract; and
(vi) with respect to any Material Contract (other than any agreement, contract license to which any Governmental Authority is a counterparty) that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "NON-ASSIGNABLE CONTRACT"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to the Collateral Agent and use its commercially reasonable best efforts to obtain such consent as soon as practicable thereafter. PLEDGE AND SECURITY AGREEMENT 434560-New York Server 3A EXECUTION
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest be used in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjust, settle provision of this Agreement 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 material respect unlawfully or in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 violation of any Receivableapplicable statute, regulation or release wholly ordinance or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andpolicy of insurance covering the Collateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Term Collateral Agent in writing, by executing and delivering to keep the Term Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any Receivable such change or establishment (unless the Term Collateral Agent, in excess its reasonable discretion, consents to a shorter period of $500,000notice after the fact), 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 Term Collateral Agent may reasonably request and (b) taken all actions reasonably requested by the Revolving Collateral Agent to maintain the continuous validity, perfection and the same or better priority of the Term Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Term Collateral Agent or any Term Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall not take or permit any action which could impair the Term Collateral Agent's rights in the Collateral other than Permitted Sales and the granting of Permitted Liens;
(vi) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales; and
(vii) within thirty (30) days after the Closing Date, it will establish a deposit account to be the Asset Sale Proceeds Account, and upon such establishment the Borrower will be the sole owner thereof, and the Borrower shall, within such thirty (30) day time period deliver to the Term Collateral Agent a legal opinion in form and substance reasonably satisfactory to it, that the Term Collateral Agent has a valid and perfected security interest in the Asset Sale Proceeds Account.
Appears in 1 contract
Covenants and Agreements. Each The Grantor hereby covenants and agrees that:
(i1) other it shall keep and maintain at its own cost and expense satisfactory and complete records of the Receivables in accordance with GAAP;
(2) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary conduct course of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws)business, and except as otherwise provided in subsection (ii4) below, during the continuance of following an Event of Default, such Grantor shall not (Aw) grant any extension or renewal of the time of payment of any Receivable, (Bx) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (Cy) release, wholly or partially, any Person liable for the payment thereof, or (Dz) allow any credit or discount thereon;
(ii3) it shall mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Trustee, all Chattel Paper and Instruments (other than items to be deposited for collection) representing debt with a Fair Market Value of $100,000 (other than any delivered to the Collateral Trustee as provided herein;
(4) except as otherwise provided in this subsection, each Grantor shall continue to collect all material amounts due (subject to paragraph 2 above) or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right (except to the extent such failure would not reasonably be expected to cause a Material Adverse Effect) it may have under any Receivable, any Supporting Obligation or Collateral Support, in each case, at its own expense. At any time following the occurrence and during the continuation of an Event of DefaultDefault and the Collateral Trustee notifies the Grantors as provided in the Indenture, the Collateral Agent shall have the right at any time to Trustee may: (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B1) 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, Trustee; (C2) notify, or require any the 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, Trustee; and (D3) 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 the 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 an Investment Account “controlled” (for purposes of account maintained under the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account)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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
Appears in 1 contract
Samples: First Lien Security Agreement (Ziff Davis Holdings Inc)
Covenants and Agreements. Each Grantor hereby 4.1 Given by Isracann – Isracann covenants and agrees thatwith the Issuer that it will:
(a) permit representatives of the Issuer, at their own cost, reasonable access during normal business hours to Isracann’s Documents including, without limitation, all of the assets, contracts, financial records and minute books of Isracann, so as to permit the Issuer to make such investigation of Isracann as the Issuer deems reasonably necessary;
(b) assist in the completion of any steps required in any other jurisdictions where Isracann holds assets, which the Issuer may deem reasonably necessary to complete the Transaction;
(c) provide to the Issuer all such further documents, instruments and materials and do all such acts and things as may be reasonably required by the Issuer to seek the Regulatory Approval, including, without limiting the foregoing, all relevant information concerning it and its business, assets, operations and financial statements for inclusion in any public disclosure document to be prepared by the Issuer in connection with the Transaction;
(d) from and including the Effective Date through to and including the Time of Closing, preserve and protect the goodwill, assets and undertaking of Isracann, carry on the Business of Isracann in the ordinary course in a reasonable and prudent manner consistent with past practice;
(e) use its commercially reasonable efforts to obtain all required third party consents, Permits, approvals, authorizations, filings, assignments or waivers and amendments or terminations to any instrument or agreement and take such other measures as may be necessary to fulfil its obligations hereunder and to carry out the transactions contemplated by this Agreement, including obtaining any shareholder approvals, consents or agreements as may be required under applicable corporate laws, securities laws, the rules and policies of the Exchange and the constating documents of Isracann to be able to fulfill its obligations hereunder and in connection with the delivery of all of the Isracann Shares on Closing;
(f) co-operate with the Issuer, in the Issuer’s efforts and at the Issuer’s expense, to obtain the Regulatory Approval with respect to:
(i) other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonTransaction;
(ii) at any time following the occurrence and during the continuation of an Event of DefaultConvertible Loan, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonapplicable; and
(iii) such other documents as the Issuer may reasonably request in order to obtain the Regulatory Approval;
(g) comply with the terms hereof and faithfully and expeditiously seek to satisfy the conditions precedent set out Section 7.1 and 7.2 so as to close the Transaction and all related transactions by the Closing Date;
(h) from and including the Effective Date through to and including the Time of Closing, except as set out in this Agreement, not enter into any agreement or understanding with any other party to issue any securities of Isracann without the prior written consent of the Issuer, such consent not to be unreasonably withheld, other than the issuance of Isracann Shares on due exercise of Isracann Warrants, Isracann Options or (if applicable) Isracann PP Warrants;
(i) from and including the Effective Date through to and including the Time of Closing, not directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into negotiations with, any Person (other than the Issuer), with respect to any amalgamation, merger, consolidation, arrangement, restructuring, sale of any material assets or part thereof of Isracann;
(j) take all necessary corporate action to approve and will complete the Isracann Name Change before the Closing Date;
(k) make other necessary filings and applications under applicable, foreign, federal and provincial laws and regulations required on the part of it shall in connection with the transactions contemplated herein;
(l) use its commercially reasonable efforts to keep conduct its affairs so that all of the representations and warranties of it contained herein shall be true and correct in full force all material respects on and as of the Closing Date as if made on the Closing Date, except to the extent that such representations and warranties require modification to give effect to the transactions contemplated herein;
(m) notify the Issuer immediately upon becoming aware that any Supporting Obligation of the representations or Collateral Support relating warranties of it contained herein are no longer true and correct in any material respect; and
(n) from and including the Effective Date through to any Receivable and including the Time of Closing, ensure that it complies in excess all material respects with the foregoing covenants of $500,000this Agreement.
Appears in 1 contract
Samples: Securities Exchange Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
: (i) other than in addition to any rights under Section 4.3, upon the ordinary conduct occurrence and during the continuance of its business a Default or an Event of Default, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant Collateral Agent may at any time notify, or require any Grantor to Section 1339 so notify, the counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent; (ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract; (Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto; (iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts; (v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder may deem necessary or advisable; 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
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess Material Contract. Letter of $500,000Credit Rights.
Appears in 1 contract
Samples: Security Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(i) Each Grantor agrees to deliver or cause to be delivered to the Administrative Agent any and all Pledged Securities (A) in the case of any such Pledged Securities owned by such Grantor on the Closing Date, on the Closing Date, and (B) in the case of Pledged Securities acquired by such Grantor after the Closing Date, promptly and in any event within 14 days after the acquisition thereof by such Grantor (or such longer period agreed to by the Administrative Agent in its reasonable discretion).
(A) Except with respect to intercompany Indebtedness evidenced by the Master Intercompany Note, if any Indebtedness for borrowed money in a principal amount in excess of $100,000 (individually) is owing to any Grantor and such Indebtedness is evidenced by a promissory note, such Grantor shall deliver to the Administrative Agent such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (B) with respect to intercompany Indebtedness, all Indebtedness of the Borrower and each of its Subsidiaries that is owing to any Grantor (or Person required to become a Grantor) shall be evidenced by the Master Intercompany Note, and the Administrative Agent shall have received such Master Intercompany Note duly executed by the Borrower, each such Subsidiary and each such other Grantor, together with undated instruments of transfer with respect thereto endorsed in blank;
(iii) Upon delivery to the Administrative Agent, (A) any certificate, instrument or document representing or evidencing Pledged Securities shall be accompanied by undated stock or note powers duly executed in blank or other undated instruments of transfer satisfactory to the Administrative Agent and duly executed in blank and by such other instruments and documents as the Administrative Agent may reasonably request and (B) all other property comprising part of the Pledged Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Administrative Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the Pledged Securities, which schedule shall be attached hereto as Part A, B or C, as applicable, of Schedule 3.4; provided that failure to attach any such schedule hereto shall not affect the validity of the pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
(iv) Except for Excluded Accounts, no Grantor shall establish or maintain, or permit any other Grantor to establish or maintain, any Securities Account or Commodities Account that is not subject to the Control of the Administrative Agent.
(v) Except for restrictions and limitations imposed by the Loan Documents or securities laws generally, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Administrative Agent of rights and remedies hereunder.
(vi) Each Grantor pledging Uncertificated Securities shall deliver to the Administrative Agent an agreement among the issuer thereof, the Administrative Agent and such Grantor, in form and substance satisfactory to the Administrative Agent, pursuant to which such issuer agrees to comply with any and all instructions originated by the Administrative Agent without further consent by such Grantor and not to comply with instructions regarding such Uncertificated Securities originated by any other person other than in a court of competent jurisdiction. The Administrative Agent agrees with each Grantor that the ordinary conduct Administrative Agent shall not give any such instructions or directions to any such issuer unless an Event of its business or Default has occurred and is continuing. In addition, each Grantor hereby agrees that upon the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, it will comply with written instructions of the Administrative Agent with respect to the Equity Interests in such Grantor shall not that constitute Pledged Equity Interests hereunder without further consent by the applicable owner or holder of such Equity Interests.
(vii) In the event (A) grant any extension Grantor or renewal any Approved Intermediary shall, after the date hereof, terminate an agreement with respect to the maintenance of the time of payment of a Securities Account or Commodities Account for any Receivablereason, (B) compromise or settle any dispute, claim or legal proceeding the Administrative Agent shall demand the termination of an agreement with respect to any Receivable for less than the total unpaid balance thereofmaintenance of a Securities Account or a Commodities Account as a result of the failure of the applicable Approved Intermediary to comply with the terms of the applicable Control Agreement, or (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following Administrative Agent determines in its sole discretion that the occurrence and during the continuation financial condition of an Event of DefaultApproved Intermediary has materially deteriorated, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request transfer the assets held in such Securities Account or Commodities Account, as applicable, to another Securities Account or Commodities Account, as applicable, acceptable to the Administrative Agent and that is subject to the Control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Administrative Agent.
Appears in 1 contract
Samples: Pledge and Security Agreement (Harvard Bioscience Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept First Priority Liens and Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, be used unlawfully or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and to adjustprovision of this Agreement or any applicable statute, settle regulation or compromise ordinance or any policy of insurance covering 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least thirty (30) days prior to any Receivable 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 excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights SECOND LIEN PLEDGE AND SECURITY AGREEMENT EXECUTION in any Collateral shall be 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 materially and adversely affect the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent's rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as Permitted Sales; provided that in connection with any Permitted Sale the Collateral Agent shall release the Lien hereof encumbering the Collateral that is the subject of such Permitted Sale and the Collateral Agent shall execute each and every appropriate filing statement and/or recording document reasonably requested by any Grantor in connection with the foregoing. Any reasonable expense or cost incurred by the Collateral Agent in connection with any such release shall be for the account of the applicable Grantor.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it that relates in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor may deem necessary 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;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) each Grantor shall, to the extent reasonably requested by the Collateral Agent within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in excess writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby covenants Section 5.1. Conduct of Business by the Company or Parent. From and agrees thatafter the date hereof and prior to the Effective Time or 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 law (provided that any party availing itself of such exception must first consult with the other party), (ii) as may be agreed in writing by Parent and the Company, (iii) as may be expressly permitted pursuant to this Agreement, or (iv) as set forth in Section 5.1 of the Company Disclosure Schedule or the Parent Disclosure Schedule, as the case may be:
(a) the Company:
(i) shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted;
(ii) shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organiza tion and goodwill (except that any of its Subsidiaries may be merged with or into, or be consolidated with any of its other Subsidiaries or may be liquidated into the Company or any of its Subsidiaries), keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with the Company and its Subsidiaries;
(iii) shall confer at such times as Parent may reasonably request with one or more representatives of Parent to report material operational matters and the general status of ongoing operations (to the extent Parent reasonably requires such information);
(iv) shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries' respective properties and of any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of any governmen tal body or authority if such emergency, change, complaint, investigation or hearing could have a Material Adverse Effect on the Company;
(v) shall not, and shall not (except in the ordinary course of business consistent with past practice) permit any of its Subsidiaries that is not wholly owned to, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock;
(vi) shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction;
(vii) shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business consistent with past practice, enter into or amend any employment, severance or similar agreements or arrangements with any of their respective directors or executive officers;
(viii) shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than (A) the Merger and (B) any mergers, consolidations or business combinations with the Company's Subsidiaries entered into in the ordinary course of business consistent with past practice or which comply with the size of transactions limitations set forth at the end of this clause (viii)), any acquisition of assets or securities, any disposition of assets or securities or any release or relinquishment of material contract rights, in each case not in the ordinary course of business consistent with past practice, except that the Company may acquire or dispose of assets or securities in transactions where the fair market value of the consideration paid or received does not exceed $25 million in any single transaction or $100 million in all such transactions;
(ix) shall not propose or adopt any amendments to its corporate charter or by-laws;
(x) shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class (whether through the issuance or granting of options, warrants, commit ments, subscriptions, rights to purchase or otherwise);
(xi) shall not, and shall not permit any of its Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock;
(xii) shall not, and shall not permit any of its Subsidiaries to, purchase or redeem any shares of its stock or any rights, warrants or options to acquire any such shares;
(xiii) shall not, and shall not permit any of its Subsidiaries to, amend in any respect the terms of their respective employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements;
(xiv) shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than in the ordinary conduct course of business consistent with past practice;
(xv) shall not, and shall not permit any of its business Subsidiaries to, (i) make any loans, advances or capital contributions to, or investments in, any other person, other than by the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 Company or a Subsidiary of the New York State Racing, PariCompany to or in the Company or any wholly-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection owned Subsidiary of the Company or (ii) belowpay, during discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than indebtedness, issuances of debt securities, guarantees, loans, advances, capital contributions, investments, payments, discharges or satisfactions incurred or committed to in the continuance ordinary course of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding business consistent with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonpast practice;
(iixvi) at shall not sell, lease, license, mortgage or otherwise encumber or subject to any time following the occurrence and during the continuation Lien or otherwise dispose of an Event any of Defaultits properties or assets (including securitizations), the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest other than in the Receivables ordinary course of business consistent with past practice;
(xvii) shall not, and shall not permit any Supporting Obligationof its Subsidiaries to, (Bi) direct the Account Debtors under make any Receivables to make payment of all amounts due Tax election or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount any Tax liability or payment thereof, (ii) change its fiscal year;
(xviii) except as disclosed in the same manner and Company SEC Reports filed prior to the same extent date of this Agreement, or as such Grantor might have done. If required by a governmental body or authority, shall not change its methods of accounting (including, without limitation, make any material write-off or reduction in the Collateral Agent notifies carrying value of any Grantor that it has elected assets) in effect at December 31, 1997, except as required by changes in GAAP as concurred in by the Company's independent auditors;
(xix) shall not, and shall not permit any of its Subsidiaries to, take any action or fail to collect take any action which action or failure to act would, or would be reasonably likely to, prevent the Receivables parties hereto from accounting for the Merger in accordance with the preceding sentence, any payments pooling of Receivables received by such Grantor shall be forthwith (and in any event within two (2) interests method of accounting under the requirements of Opinion No. 16 "Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes Combinations" of the UCC) Accounting Principles Board of the American Institute of Certified Public Accountants, as amended by applicable pronouncements by the Collateral Agent Financial Accounting Standards Board (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment Account"APB No. 16"), 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000.
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), the cancellation or termination of all Commitments, the expiration or termination of all Hedge Agreements and the cancellation or expiration of all outstanding Letters of Credit:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during the continuation Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of an Event business (or principal residence if such Grantor is a natural person), chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral 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 time 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 (A) notifymaintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Supporting ObligationSecured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(Bv) direct 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 Account Debtors 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 Receivables 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 payment of all amounts due or to become due to such payment;
(vi) upon such Grantor thereunder directly 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 the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which could impair the Collateral Agent, (C) 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 (D) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, ’s rights in the same manner and to the same extent Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as such Grantor might have done. If the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Credit Agreement.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, upon the occurrence and during the continuation of any Event of Default, the Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) 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 Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Effective Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Medical Systems 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) it shall mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper and Instruments (other than in any delivered to the ordinary conduct of its business or Collateral Agent as provided herein)with an appropriate reference to the extension of payment terms of markers of gaming patrons fact that the Collateral Agent has a security interest therein;
(including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and iii) except as otherwise provided in subsection (ii) belowthis subsection, during each Grantor shall take such actions as it determines in good faith are appropriate collect all amounts due or to become due to such Grantor under the continuance of an Event of DefaultReceivables and any Supporting Obligation and 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 not (A) grant any extension take such action as such Grantor or renewal of the time of payment of any ReceivableCollateral Agent may deem necessary or advisable. Notwithstanding the foregoing, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation continuance of an Event of Default, the Collateral Agent shall have the right at any time to (A) 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 continuance of an Event of Default, the Collateral Agent may: (B1) 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, ; (C2) 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 (D3) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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
(iiiiv) 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 in excess of $500,000Receivable.
Appears in 1 contract
Samples: Financing Agreement (Model N, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and upon obtaining knowledge thereof, it shall defend the Collateral against all Persons (other than the total unpaid balance thereofSecured Parties) that have instituted, (C) release, wholly or partiallymade a non-frivolous threat in writing of, any Person liable for Adverse Proceeding claiming an interest therein adverse to the payment thereof, or (D) allow any credit or discount thereonCollateral Agent;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during Collateral if such violation or noncompliance could reasonably be expected to have, individually or in the continuation aggregate, a Material Adverse Effect;
(iii) it shall not change such Grantor’s legal name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of an Event organization or jurisdiction of Default, organization unless it shall have
(a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to applicable Schedules showing such change thereto, no more than thirty (30) days (or such longer period as may be agreed by the Collateral Agent) after 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 reasonably determined to be necessary by the Collateral Agent to maintain the continuous validity, perfection and at any time to (A) notify, or require any Grantor to notify, any Account Debtor least the same priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and any Supporting Obligation, (B) direct the Account Debtors under any Receivables agreed to make payment of all amounts due or hereby; provided that with respect to become due to such Grantor thereunder directly to the Collateral Agent, (C) notify, or require any Grantor that is an Immaterial Restricted Subsidiary, non-compliance with the foregoing covenant shall not result in a Default pursuant to notifySection 8.1 of the Credit Agreement for a period of ten (10) Business Days after the receipt of the notice pursuant to Section 8.1(e) of the Credit Agreement, 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 (D) 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 so long as such Grantor might have done. If is diligently pursuing in good faith the Collateral Agent notifies any Grantor that it has elected cure or correction of such non-compliance continuously during such period;
(iv) except as otherwise permitted under the Credit Agreement or as consented 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (such consent not to be unreasonably withheld or delayed), it being understood shall not file any certificates of domestication, transfer or continuance in any jurisdiction other than the jurisdiction set forth opposite such Grantor’s name on Schedule 4.1(A); provided that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such any Grantor that is an Investment Account)Immaterial Restricted Subsidiary, and until non-compliance with the foregoing covenant shall not result in a Default pursuant to Section 8.1 of the Credit Agreement for a period of ten (10) Business Days after the receipt of the notice pursuant to Section 8.1(e) of the Credit Agreement, so turned over, all amounts and proceeds (including checks and other instruments) received by long as such Grantor is diligently pursuing in respect of good faith the Receivables, any Supporting Obligation cure or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds correction of such Grantor and non-compliance continuously during 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 thereonperiod; and
(iiiv) it shall use its commercially reasonable efforts not take or permit any action which could materially impair the Collateral Agent’s rights in the Collateral, subject to keep Grantors’ rights to dispose of or abandon rights in full force the Collateral to the extent permitted hereunder or under the Credit Agreement and effect any Supporting Obligation or Collateral Support relating the right to any Receivable in excess of $500,000grant Permitted Liens.
Appears in 1 contract
Samples: Pledge and Security Agreement (Covanta Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any time claiming any interest therein (other than any such claim with respect to Permitted Liens or an immaterial portion of the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral);
(ii) at it shall not produce, use, expressly permit or otherwise permit (to its knowledge) any time following Collateral to be used in violation of any provision of this Agreement or in any material respect unlawfully or in violation of any applicable statute, regulation or ordinance or any material policy of insurance covering the occurrence and during Collateral;
(iii) except with respect to any transaction permitted under the continuation Revolving Credit Agreement which results in such Grantor ceasing to be a Credit Party, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business, chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Revolving Collateral Agent shall have in writing, by executing and delivering to the right at Revolving Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, within thirty (30) days following any time such change or establishment (unless the Revolving Collateral Agent, in its reasonable discretion, consents to a longer period of notice), identifying such new proposed name, identity, corporate structure, sole place of business (Aor 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 Revolving Collateral Agent may reasonably request and (b) notifytaken all actions reasonably requested by the Revolving Collateral Agent to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Revolving Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) it shall not take or permit any Supporting Obligation, (B) direct action which could reasonably be expected to impair the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Revolving Collateral Agent’s rights in the Collateral Agent, (C) 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 other than Permitted Sales and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent, and (D) enforce, at the expense granting 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonPermitted Liens; and
(iiiv) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except for Permitted Sales.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Defaultsecurity interest created by this Agreement, such Grantor shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any time claiming any interest therein (other than holders of Permitted Liens (except to the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for extent otherwise provided under the payment thereof, or (D) allow any credit or discount thereonCredit Agreement));
(ii) at such Grantor shall not produce, use or permit any time following 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 occurrence and during Collateral except as otherwise permitted by the continuation Credit Agreement;
(iii) such Grantor shall not change its name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of an Event business (or principal residence if such Grantor is a natural person), chief executive office, type of Default, organization or jurisdiction of organization unless it shall have (A) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least five (5) days prior to any time such change, 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 or jurisdiction of organization and providing such other information in connection therewith as the Collateral Agent may reasonably request, (B) with respect to type of organization and jurisdiction of organization, notified Collateral Agent in writing at least ten (A10) notifyBusiness Days prior to any such change and (C) taken all actions necessary or advisable to maintain the continuous validity, or require any Grantor to notify, any Account Debtor perfection and at least the same priority of the Collateral Agent’s security interest in the Receivables Collateral intended to be granted and any Supporting Obligation, agreed to hereby;
(Biv) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to [reserved];
(v) [reserved];
(vi) upon such Grantor thereunder directly to or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Collateral Agent, Agent in writing of any event that may have a material adverse effect on the value of the Collateral (Ctaken as a whole) notifyor any material portion thereof, 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 the rights and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to remedies of the Collateral AgentAgent in relation thereto, and including, without limitation, the levy of any legal process against such Collateral or any material portion thereof; and
(Dvii) enforcesuch Grantor shall not take or permit any action, at in the expense reasonable opinion 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 which could impair 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into Agent’s rights as a Control Agreement with respect to such an Investment Account), and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor secured creditor 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Collateral.
Appears in 1 contract
Samples: Pledge and Security Agreement (AvidXchange Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of all Secured Obligations:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to be used (Aa) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) enforce, at the expense of such Grantor, collection violation of any such Receivables and provision of this Agreement or (b) except as could not reasonably be expected to adjustresult in a Material Impairment, settle unlawfully 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 violation of any Receivableapplicable statute, regulation or release wholly ordinance or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andpolicy of insurance covering the Collateral;
(iii) it shall use not change its commercially name, type of organization, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) unless it shall (a) promptly after such change or establishment notify the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, together with all Supplements to Schedules thereto, of any such change or establishment, identifying such new proposed name, jurisdiction of organization, Federal Taxpayer Identification Number or corporate structure and providing the Collateral Agreement certified copies of any relevant filings and such other information in connection therewith as the Collateral Agent may reasonably request and (b) take all actions necessary or advisable, in the reasonable efforts judgment of Collateral Agent, to keep maintain the continuous validity, perfection and the same or better priority of the Collateral Agent's security interest in full force the Collateral intended to be granted and effect agreed to hereby;
(iv) to the extent required by the Credit Agreement, 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 Supporting Obligation 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 Support relating as a result of the failure to make such payment;
(v) [intentionally deleted];
(vi) it shall not take or permit any Receivable action which could materially impair the Collateral Agent's rights in excess the Collateral;
(vii) it shall not sell, transfer or assign (by operation of $500,000law or otherwise) any Collateral except as otherwise in accordance with the Credit Agreement; and
(viii) in the event any Person becomes its Domestic Subsidiary, such Grantor shall (a) promptly cause such Domestic Subsidiary to become an Additional Grantor pursuant to Section 5.3, (b) promptly take all actions necessary to grant and to perfect (with respect to Intellectual Property to the extent such perfection and priority may be achieved by filings made in the United States) a Second Priority security interest in the Collateral consisting of personal property of such Domestic Subsidiary in favor of Collateral Agent for the benefit of the Secured Parties in respect of such Collateral in accordance with this Agreement, and (c) subject to the provisions of the Intercreditor Agreement, promptly cause each Person holding Capital Stock of such Domestic Subsidiary to take all actions necessary to grant and to perfect a Second Priority security interest in favor of Collateral Agent for the benefit of the Secured Parties in respect of all such Capital Stock.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees thatwith the several Underwriters as follows:
(a) The Company will use its reasonable best efforts to cause any amendments to the Registration Statement to become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, as many copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission.
(e) The Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Securities, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Securities pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Securities under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) The Company will use its reasonable best efforts to address the apparent erroneous recordation of the security interest in the ordinary conduct United States Patent and Trademark Office database, Assignment 29151-269, recorded on October 18, 2012, within forty-five (45) days of its business the Closing Date.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 or 12 hereof) or if this Agreement shall be terminated by the extension Underwriters because of payment any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of markers the conditions of gaming patrons this Agreement, the Company agrees to reimburse you and the other Underwriters for all documented out-of-pocket expenses (including credit arrangements pursuant travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith, such expenses not to Section 1339 exceed $100,000 in the aggregate.
(m) The Company will apply the net proceeds from the sale of the New York State Racing, PariSecurities to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Mutuel Wagering and Breeding Law and other Gaming LawsUp Period”), and except as otherwise provided in subsection (ii) belowthe Company agrees not to, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension directly or renewal of the time of payment of any Receivableindirectly, (B1) compromise offer for sale, sell, pledge or settle otherwise dispose of (or enter into any disputetransaction or device that is designed to, claim or legal proceeding could be reasonably expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any Receivable shares of Common Stock or securities convertible into or exchangeable for less Common Stock (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration for the offer and sale by the Company of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the total unpaid balance thereoffiling of a registration statement pursuant to Form S-8 in connection with the Company’s equity incentive plans) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the initial delivery date, a letter or letters, substantially in the form of Exhibit A hereto (Cthe “Lock-Up Agreements”); provided, however, that Lock-Up Period and restrictions included in each of clauses (1) release— (4) above shall not apply to (i) the issuance of Common Stock pursuant to employee benefit plans, wholly or partiallyqualified stock option plans, any Person liable for the payment thereofequity incentive plans, employee stock purchase plans, or (D) allow any credit other employee compensation plans existing on the date hereof or discount thereon;
pursuant to currently outstanding options, warrants or rights, or the grant of options pursuant to option plans existing on the date hereof, and (ii) at any time following the issuance or potential issuance of Common Stock (or securities convertible into or exchangeable for shares of Common Stock) in connection with a strategic partnership, joint venture, merger, collaboration, acquisition, license, business arrangement or the establishment of a bona fide commercial relationship; notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest material event, unless the Representative, on behalf of the Underwriters, waives such extension in the Receivables and any Supporting Obligation, writing.
(Bo) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly Prior to the Collateral AgentClosing Date or the Additional Closing Date, (C) 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 as the Collateral Agent, and (D) enforcecase may be, 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent Underwriters, the Company will furnish to establish or enter into a Control Agreement with respect to such an Investment Account)you, and until so turned overas promptly as possible, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect copies of any unaudited interim consolidated financial statements of the ReceivablesCompany and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any Supporting Obligation action designed, or Collateral Support which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Securities.
(r) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be received in trust the same entity as the transfer agent) for the benefit of Common Stock.
(t) The Company shall engage and maintain, at its expense, a transfer agent as warrant agent for the Collateral Agent hereunder Warrants and shall be segregated from other funds continue to retain such warrant agent for a period of such Grantor and such Grantor shall not adjust, settle or compromise five years (5) following 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Invivo Therapeutics Holdings Corp.)
Covenants and Agreements. Each Grantor hereby covenants and agrees with Collateral Agent and each other Secured Party that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, Collateral Agent may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of Collateral Agent therein. In addition, Pari-Mutuel Wagering after the occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the counterparty to make all payments under the Material Contracts directly to Collateral Agent’s security interest ;
(ii) it shall deliver promptly to Collateral Agent a copy of each material demand, notice or document received by it relating in the Receivables and any Supporting Obligation, way to any Material Contract;
(Biii) direct the Account Debtors under any Receivables it shall deliver promptly to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent, (C) 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 (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 Collateral Agent (to the extent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Collateral Agent may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonadvisable; andPledge and Security Agreement
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract;
(vii) [Intentionally Reserved];
(viii) it shall use its commercially reasonable efforts to ensure that no Material Contract entered after the Closing Date shall contain a “change of control” provision;
(ix) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in excess any contract to which it hereafter becomes a party of $500,000any provision that would reasonably be expected to in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any agreement, contract or license to which any Grantor is a party; and
(x) it shall promptly deposit or cause to be deposited into one or more Controlled Accounts all cash, checks, drafts or other items of payment received by it relating to or constituting payments made in respect of any Material Contract.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Del Frisco's Restaurant Group, LLC)
Covenants and Agreements. Each Grantor hereby Survival. Notwithstanding any right of any party to fully investigate the affairs of the other party and notwithstanding any knowledge of facts determined or determinable by such party pursuant to such investigation or right of investigation, each party has the right to rely fully upon the representations, warranties, covenants and agrees that:
(i) agreements of each other than party in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingthis Agreement. All representations, Pari-Mutuel Wagering warranties, covenants and Breeding Law agreements contained in this Agreement shall remain operative and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect until the 18-month anniversary of the Closing Date; provided, however, that (i) the representations and warranties contained in Section 3.18 (Employee Benefit Plans) and Section 3.22 (Environmental Matters) shall terminate on the 3-year anniversary of the Closing Date; (ii) the representations and warranties contained in Section 3.08 (Tax Matters) shall survive for 60 days beyond the expiration of the applicable statute of limitations (including extensions thereof); (iii) the representations and warranties contained in Sections 3.02 (Authority to Execute and Perform Agreements), 3.03 (Capitalization and Title to Shares), 3.28 (Brokerage) and Sections 4.02 (Authority to Execute and Perform Agreements) and 4.05 (Brokerage) shall survive the Closing indefinitely; and (iv) the obligations set forth in Sections 7.04 (Non-Competition); and 7.05 (Non-Solicitation) shall terminate on the 3-year anniversary of the Closing Date. No claim for indemnification hereunder for breach of any Supporting Obligation such representations or Collateral Support relating warranties may be made after the expiration of the survival period applicable to such claims; provided, however, that any Receivable representation or warranty in excess respect of $500,000which indemnity may be sought under this Article XI, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 11.01 if notice of breach or potential breach thereof giving rise to such right or potential right of indemnity shall have been given to the Person against whom such indemnity may be sought prior to such time.
Appears in 1 contract
Samples: Purchase Agreement (Joy Global Inc)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees thatwith the several Underwriters as follows:
(a) The Company will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission.
(e) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than in the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 those arising out of the New York State Racingoffering or sale of the Shares, Parias contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-Mutuel Wagering issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and Breeding Law secondary trading and other Gaming Lawswill comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the Effective Time of the Registration Statement and except the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as otherwise provided in subsection soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the period ending three years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”), the NYSE MKT (“NYSE”), the Tel Aviv Stock Exchange (“TASE”) or any national securities exchange and (ii) belowfrom time to time such other information concerning the Company as you may reasonably request; provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such document or report on XXXXX.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, during other than clause (iv)) or if this Agreement shall be terminated by the continuance Underwriters because of an Event of Defaultany inability, such Grantor shall not (A) grant any extension failure or renewal refusal on the part of the time Company to perform in all material respects any agreement herein or to comply in all material respects with any of payment the terms or provisions hereof or to fulfill in all material respects any of any Receivablethe conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (B1) compromise offer for sale, sell, pledge or settle otherwise dispose of (or enter into any disputetransaction or device that is designed to, claim or legal proceeding could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any Receivable shares of Common Stock or securities convertible into or exchangeable for less Common Stock (other than the total unpaid balance thereofgrant of options pursuant to option plans existing on the date hereof), (C2) releaseenter into any swap or other derivatives transaction that transfers to another, wholly in whole or partiallyin part, any Person liable for of the payment thereofeconomic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (D2) allow above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any credit amendments, with respect to the registration of any shares of Common Stock or discount thereon;
securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (ii4) at publicly disclose the intention to do any time following of the occurrence foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and during to cause each officer, director and stockholder of the continuation Company set forth on Schedule III hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of an Event of Default, Exhibit A hereto (the Collateral Agent “Lock-Up Agreements”). The restrictions contained in the preceding sentence shall have the right at any time not apply to (A) notify, or require any Grantor the Firm Shares and Additional Shares to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables be sold hereunder and any Supporting Obligation, (B) direct the Account Debtors under any Receivables issuance of shares of Common Stock, restricted stock units, stock appreciation rights, options to make payment purchase Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans, the Company’s equity incentive plans or other employee compensation plans in effect on the date of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agentthis Agreement, (C) 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 may be amended from time to time sent to increase the number of shares issuable thereunder, or deposited in such lockbox pursuant to currently outstanding restricted stock units, stock appreciation rights, options, warrants or other arrangement directly rights.
(p) Prior to the Collateral AgentClosing Date or the Additional Closing Date, and (D) enforceas the case may be, 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent Underwriters, the Company will furnish to establish or enter into a Control Agreement with respect to such an Investment Account)you, and until so turned overupon your request, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect copies of any unaudited interim consolidated financial statements of the ReceivablesCompany and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any Supporting Obligation action designed, or Collateral Support which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with the NYSE and TASE all documents and notices required by the NYSE and the TASE of companies that have or will issue securities that are traded on the NYSE and the TASE.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be received in trust the same entity as the transfer agent) 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Biotime Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for the payment thereof, or (D) allow time claiming any credit or discount thereoninterest therein;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation Collateral to be used unlawfully or in violation of an Event any provision of Defaultthis Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral Agent shall if such violation could reasonably be expected to have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andMaterial Adverse Effect;
(iii) it shall use its commercially reasonable efforts not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Parity Lien Collateral Trustee in writing, by executing and delivering to keep the Parity Lien Collateral Trustee a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any Receivable such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in excess connection therewith as the Parity Lien Collateral Trustee may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of $500,000the Parity Lien Collateral Trustee’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Parity Lien Collateral Trustee or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be 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 and as otherwise provided in the Parity Lien Documents; 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 Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Parity Lien Collateral Trustee in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Parity Lien Collateral Trustee to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Parity Lien Collateral Trustee in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Parity Lien Collateral Trustee’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with each of the Parity Lien Documents.
Appears in 1 contract
Samples: Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance thereofCollateral, (C) releaseexcept Permitted Liens, wholly or partially, and such Grantor shall defend the Collateral against all Persons at any Person liable for time claiming any interest therein adverse to the payment thereof, or (D) allow any credit or discount thereonCollateral Agent;
(ii) at it shall not produce, use or permit any time following 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 occurrence and during Collateral if such violation or noncompliance could reasonably be expected to have, individually or in the continuation aggregate, a Material Adverse Effect;
(iii) except as listed on Schedule 4.1.A.1, it shall not change such Grantor's name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), type of an Event organization or jurisdiction of Default, organization unless it shall have (a) notified the Collateral Agent shall have in writing, by executing and delivering to the right Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to applicable Schedules showing such change thereto, at least thirty (30) days prior to any time 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 reasonably requested by the Collateral Agent to (A) notifymaintain the continuous validity, or require any Grantor to notify, any Account Debtor perfection and at least the same priority of the Collateral Agent’s 's security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) except as otherwise permitted under the Parity Lien Documents it shall not file any Supporting Obligationcertificates of domestication, transfer or continuance in any jurisdiction other than the jurisdiction set forth opposite such Grantor's name on Schedule 4.1(A);
(Bv) direct the Account Debtors under it shall not take or permit any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to action which could materially impair the Collateral Agent's rights in the Collateral, (C) notify, subject to Grantors' rights to dispose of 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 abandon rights in such lockbox or other arrangement directly the Collateral to the extent permitted hereunder or under the Parity Lien Documents or the right to grant Permitted Liens; and
(vi) it shall not sell, transfer, exclusively license or assign (by operation of law or otherwise) any Collateral Agent, and (D) 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 the 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 the Collateral Agent if required, in an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; and
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Parity Lien Documents.
Appears in 1 contract
Samples: Pledge and Security Agreement (Danielson Holding Corp)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees thatwith the several Underwriters as follows:
(a) The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed, (iii) of the receipt of any comments of the Commission relating to the Registration Statement, or any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(g) hereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) under the Act (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433 under the Securities Act)..
(b) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative be required by the Act or requested by the Commission.
(c) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission.
(d) The Company will not make any offer relating to the BUCs that would constitute an Issuer Free Writing Prospectus without your prior consent.
(e) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(f) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(g) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(g) During the Prospectus Delivery Period (as defined below), the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act (subject to applicable extension periods).
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Units, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the ordinary conduct event that the qualification of the Units in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its business best efforts to qualify or register its BUCs for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Units.
(j) During the period ending three years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to unitholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the extension of payment terms of markers of gaming patrons Nasdaq Global Select Market (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering “NASDAQ”) or any national securities exchange and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) belowfrom time to time such other information concerning the Company as you may reasonably request, during which obligation herein shall be deemed to be satisfied by the continuance Company’s filing any such document on the XXXXX system.
(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of an Event of Defaultany inability, such Grantor shall not (A) grant any extension failure or renewal refusal on the part of the time Company to perform in all material respects any agreement herein or to comply in all material respects with any of payment the terms or provisions hereof or to fulfill in all material respects any of any Receivablethe conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you), in an aggregate amount not to exceed $75,000, reasonably incurred by you in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(m) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (B1) compromise offer for sale, sell, pledge or settle otherwise dispose of (or enter into any disputetransaction or device that is designed to, claim or legal proceeding could be expected to, result in the disposition by any person at any time in the future of) any BUCs or securities convertible into or exchangeable for BUCs (other than (x) BUCs issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, or (y) BUCs issued in an aggregate amount of no greater than $15 million pursuant to that certain Capital on DemandTM Sales Agreement dated July 21, 2021 between the Company and JonesTrading Institutional Services LLC (the “At-the-Market Program”)), or sell or grant options, rights or warrants with respect to any Receivable BUCs or securities convertible into or exchangeable for less BUCs (other than the total unpaid balance thereofgrant of options pursuant to option plans existing on the date hereof), (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 enter into any swap or other derivatives transaction that transfers to the Collateral Agent if requiredanother, in an Investment Account “controlled” (for purposes whole or in part, any of the UCCeconomic benefits or risks of ownership of such BUCs, whether any such transaction described in clause (1) or (2) above is to be settled by the Collateral Agent delivery of BUCs or other securities, in cash or otherwise, (it being understood that each Grantor agrees 3) file or cause to promptly comply with be filed a registration statement, including any reasonable request of the Collateral Agent to establish or enter into a Control Agreement amendments, with respect to such an Investment Accountthe registration of any BUCs or securities convertible, exercisable or exchangeable into BUCs or any other securities of the Company (other than the filing of a registration statement, or post-effective amendment thereto, covering preferred units representing limited partnership interests of the Company) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each executive officer of the Company and each manager of Greystone AF Manager LLC, which is the general partner of the general partner of the Company (“Greystone Manager”), and until so turned overset forth on Schedule III hereto to furnish to the Representative, all amounts and proceeds prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (including checks and other instrumentsthe “Lock-Up Agreements”); notwithstanding the foregoing, if (1) received by such Grantor in respect during the last 17 days of the ReceivablesLock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing.
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing or incorporated by reference in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the BUCs to facilitate the sale or resale of any of the Units.
(q) The Company will timely file with the NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Units are listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Units.
(s) The Company has not distributed and will not distribute, directly or indirectly (other than through the Underwriters), any Supporting Obligation “written communication” (as defined in Rule 405 under the Act) or Collateral Support shall be received other offering materials in trust for connection with the benefit offering or sale of the Collateral Agent hereunder BUCs, other than the Time of Sale Information 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
(iii) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (America First Multifamily Investors, L.P.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business this Agreement relating to Receivables, the Secured Party may at any time notify, or require any Grantor to so notify, the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 counterparty on any Material Contract of the New York State Racingsecurity interest of the Secured Party therein; provided, Pari-Mutuel Wagering the Secured Party shall not take any of the actions set forth in this sentence if and Breeding Law to the extent such action is prohibited under any federal or state law. In addition, after the occurrence and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any ReceivableSecured Party may upon written notice to the applicable Grantor, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent, Secured Party;
(Cii) notify, or require any each 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 shall deliver promptly to the Collateral AgentSecured Party a copy of each material demand, and notice or document received by it relating in any way to any Material Contract;
(Diii) 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 each Grantor shall deliver promptly 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 sentenceSecured Party, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to such Grantor or (2) Business Days) deposited 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 Secured Party (to the extent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it shall perform in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in an Investment Account “controlled” (for purposes all material respects all of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of in connection with such Grantor collections and exercise, such Grantor shall not adjust, settle take such action as such Grantor or compromise the amount Secured Party may deem necessary or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; andadvisable;
(iiivi) 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 Material Contract;
(vii) with respect to any agreement, contract or license to which any Grantor is a party that prevents the assignment or granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a "NON-ASSIGNABLE CONTRACT"), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Issue Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use its best efforts to obtain such consent as soon as practicable thereafter; and
(viii) At the request of the Secured Party at any time after the date hereof, ACE shall execute and deliver a mortgage and security agreement, in recordable form and otherwise in form and substance acceptable to the Secured Party, pursuant to which ACE grants to the Secured Party a first priority lien on and security interest in ACE's right, title and interest as lessee/licensee under the B&B License Agreement. In connection therewith, ACE shall execute and/or deliver or cause to be executed and/or delivered to the Secured Party such other documents and agreements, including without limitation an affidavit of title, a lessor's estoppel certificate from ACE's lessor/licensor and any other documents that would normally and customarily be required by a secured party receiving a leasehold mortgage in an arm's-length transaction, as shall be reasonably required by the Secured Party in order to effectuate, implement, confirm or secure the arrangement evidenced by such mortgage and security agreement. All costs in connection with such mortgage and security agreement shall be paid by ACE.
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) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance Collateral, except Permitted Liens, and such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 4.1(a)(vii) and shall defend the Collateral, such security interest and such priority, against all Persons at any time disputing such security interest or the priority thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation Collateral to be used unlawfully or in violation of an Event any provision of Defaultthis Agreement, the Collateral Agent shall have Intercreditor Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, amalgamation, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) Business Days prior to any Receivable 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 excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) 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 the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vi) it shall bear and pay all expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral and all other payments required to be made by Collateral Agent to any Person to realize upon any Collateral;
(vii) Collateral Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Collateral Agent's actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Grantors' sole risk;
(viii) it shall not take or permit any action which could impair the Collateral Agent's rights in the Collateral except as otherwise in accordance with the Intercreditor Agreement; and
(ix) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise in accordance with the Revolving Loan Agreement and the Intercreditor Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until payment in full of all Secured Obligations (other than unmatured contingent obligations), the cancellation or termination in full of the Total Revolving Loan Commitment, the cancellation or expiration of all outstanding Letters of Credit, the expiration or termination of all Secured Hedging Agreements and the expiration or termination of all Secured Cash Management Agreements:
(i) other 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;
(ii) it shall not amend, modify, terminate or waive any provision of any Receivable in any manner which could reasonably be expected to have a Material Adverse Effect. Other than in the ordinary conduct course of its business or as generally conducted by it on and prior to the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingdate hereof and, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (iiv) below, during the continuance of following an Event of Default, such Grantor shall not (Aw) grant any extension or renewal of the time of payment of any Receivable, (Bx) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (Cy) release, wholly or partially, any Person liable for the payment thereof, or (Dz) allow any credit or discount thereon;
(iiiii) at any time following the occurrence and except as otherwise provided in this subsection, each Grantor shall during the continuation continuance of an Event of DefaultDefault take such action as such Grantor or the Collateral Agent may deem reasonably necessary to exercise all material rights it may have under Receivables. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time during the continuance of an Event of Default to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting ObligationObligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (B1) 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, ; (C2) 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 (D3) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request Account maintained under the sole dominion and control of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 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
(iiiiv) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000Receivable.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and Grantor shall defend the Collateral against all Persons at any time claiming any interest therein other than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral Intellectual Property that Grantor determines in its reasonable judgment is not material to its business;
(ii) at it shall not produce, use or permit any time following Collateral to be used unlawfully, in any material respect, or in violation of any provision of this Agreement or any policy of insurance covering the occurrence and during Collateral or in violation, in any material respect, of any applicable statute, regulation or ordinance except to the continuation extent such violation would not reasonably be expected to result in a Material Adverse Effect;
(iii) without limiting any prohibitions or restrictions on mergers or other transactions set forth in the Credit Agreement, it shall not change Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business or chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent shall have in writing, at least ten (10) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business or chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the right at any time Collateral Agent may reasonably request and (b) taken or cooperated with Collateral Agent to (A) notifyenable Collateral Agent to take all actions necessary or advisable to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Collateral Agent’s security interest in the Receivables Collateral granted or intended to be granted and any Supporting Obligation, agreed to hereby (B) direct other than Collateral with respect to which the Account Debtors under any Receivables security interest is not required to make payment of all amounts due or to become due to such Grantor thereunder directly be perfected pursuant to the Collateral Agentterms hereof), (C) notify, or require which in the case of 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 merger or other arrangement directly to the Collateral Agentchange in corporate structure shall include, without limitation, executing and (D) 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 delivering to the Collateral Agent if requireda completed Pledge Supplement together with all Supplements to Schedules thereto, upon completion of such merger or other change in an Investment Account “controlled” (for purposes corporate structure confirming the grant of the UCCsecurity interest hereunder;
(iv) by if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order Grantor acquired rights therein;
(v) it being understood 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, to the extent required by the Credit Agreement;
(vi) upon Grantor’s or any officer of Grantor’s obtaining knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that each may have a Material Adverse Effect on the value of the Collateral or any substantial portion thereof, except as contemplated hereby or under any other Credit Document, the ability of Grantor agrees or the Collateral Agent to promptly comply with dispose of the Collateral or any reasonable request portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion material thereof;
(vii) except to establish the extent permitted by the Credit Agreement, it shall not take or enter into permit any action which could be reasonably likely to materially impair the Collateral Agent’s rights in the Collateral;
(viii) in the event that it hereafter acquires any Collateral of a Control Agreement with respect to type described in Section 4.1(a)(xii) hereof, it shall promptly notify there Collateral Agent thereof in writing and take such an Investment Account), actions and until so turned over, execute such documents and make such filings 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 at Grantor’s expense as the Collateral Agent hereunder and shall be segregated from other funds may reasonably request in order to ensure that the Collateral Agent has a valid, perfected, first priority security interest in such Collateral, subject in the case of such Grantor and such Grantor priority only, to any Permitted Liens;
(ix) it shall not adjustsell, settle transfer or compromise the amount assign (by operation of law or payment of otherwise) or exclusively license to another Person any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereonCollateral except as Permitted Sales; and
(iiix) it shall use its commercially reasonable efforts shall, upon acquiring any material assets from any other Credit Party (other than distributions made to keep Grantor in full force compliance with Section 6.5 of the Credit Agreement), execute and effect any Supporting Obligation or deliver to Collateral Support relating to any Receivable Agent a completed Pledge Supplement, substantially in excess the form of $500,000Exhibit A attached hereto, together with all Supplements and Schedules thereto, within 30 days of such acquisition.
Appears in 1 contract
Samples: Pledge and Security Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under Section 3.3, the ordinary conduct of its business or Collateral Agent may at any time after the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such notify, or require any Grantor shall not (A) grant to so notify, the counterparty on any extension or renewal Material Contract of the time security interest of payment of any Receivablethe Collateral Agent therein. In addition, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at any time following after the occurrence and during the continuation continuance of an Event of Default, the Collateral Agent shall have may upon written notice to the right at any time to (A) applicable Grantor, notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that is materially adverse to the Credit Parties, taken as a whole, or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 3.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account)the Material Contracts;
(v) except as otherwise in the ordinary course of business as generally conducted by it on and prior to the date hereof, it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept any right of termination that would reasonably be expected to result in a Material Adverse Effect) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support Support, in each case, at its own expense, and in connection with such collections and exercise, such Grantor shall be received in trust for the benefit of take such action as such Grantor or the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle may deem necessary 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;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) with respect to any Material Contract that prevents the granting of a security interest therein (either by its terms or by any federal or state statutory prohibition or otherwise) (any such agreement, contract or license, a “Non-Assignable Contract”), each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law and use its commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in addition to any rights under the ordinary conduct Section of its business or this Agreement relating to Receivables, after the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racing, Pari-Mutuel Wagering occurrence and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor shall not (A) grant any extension or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) Collateral Agent may at any time following notify, or require any Grantor to so notify, the occurrence and during counterparty on any Material Contract of the continuation security interest of an Event of Default, the Collateral Agent shall have the right at any time to (A) therein and notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) direct the Account Debtors under any Receivables counterparty to make payment of all amounts due or to become due to such Grantor thereunder payments under the Material Contracts directly to the Collateral Agent;
(ii) each Grantor shall deliver promptly to the Collateral Agent a copy of each material demand, notice or document received by it relating in any way to any Material Contract;
(Ciii) notify, or require any each 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 shall deliver promptly to the Collateral Agent, and (D) 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 ten (10) Business Days, after (1) any Material Contract of such Grantor is terminated or amended in a manner that could reasonably be expected to have a Material Adverse Effect or (2) Business Days) deposited any new Material Contract is entered into by such Grantor in the exact form receivedGrantor, duly indorsed by a written statement describing such Grantor event, with copies of such material amendments or new contracts, delivered to the Collateral Agent if required, in an Investment Account “controlled” (for purposes of to the UCC) extent such delivery is permitted by the Collateral Agent 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 Section 4.5(b)(iii)), and an explanation of any actions being taken with respect thereto;
(iv) it being understood that each Grantor agrees to promptly comply with any reasonable request shall perform in all material respects all of the Collateral Agent to establish or enter into a Control Agreement its obligations with respect to such an Investment Account), the Material Contracts;
(v) it shall promptly and until so turned over, all amounts and proceeds diligently exercise each material right (including checks and other instrumentsexcept the right of termination) received by such Grantor in respect of the Receivablesit may have under any Material Contract, any Supporting Obligation or Collateral Support shall be received Support, in trust for the benefit of the Collateral Agent hereunder each case, at its own expense, and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle as it deems necessary 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 in its reasonable business judgment;
(iiivi) it shall use its commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable Material Contract; and
(vii) each Grantor shall, within thirty (30) days of the date hereof with respect to any Non-Assignable Contract in excess effect on the date hereof and within thirty (30) days after entering into any Non-Assignable Contract after the Closing Date, request in writing the consent of $500,000the counterparty or counterparties to the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or applicable law to the assignment or granting of a security interest in such Non-Assignable Contract to Secured Party and use commercially reasonable efforts to obtain such consent as soon as practicable thereafter.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mortons Restaurant Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less of the Collateral, except Permitted Liens, and such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any time claiming any interest therein (other than any such claim with respect to an immaterial portion of the total unpaid balance thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereonCollateral);
(ii) at it shall not produce, use, expressly permit or otherwise permit (to its knowledge) any time following Collateral to be used in violation of any provision of this Agreement or in any material respect unlawfully or in violation of any applicable statute, regulation or ordinance or any material policy of insurance covering the occurrence and during Collateral;
(iii) except with respect to any transaction permitted under the continuation Revolving Credit Agreement which results in such Grantor ceasing to be a Credit Party, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of an Event business, chief executive office, type of Default, organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Revolving Collateral Agent shall have in writing, by executing and delivering to the right at Revolving Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto, within thirty (30) days following any time such change or establishment (unless the Revolving Collateral Agent, in its reasonable discretion, consents to a longer period of notice), identifying such new proposed name, identity, corporate structure, sole place of business (Aor 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 Revolving Collateral Agent may reasonably request and (b) notifytaken all actions reasonably requested by the Revolving Collateral Agent to maintain the continuous validity, perfection and the same or require any Grantor to notify, any Account Debtor better priority of the Revolving Collateral Agent’s security interest in the Receivables Collateral intended to be granted and agreed to hereby;
(iv) it shall not take or permit any Supporting Obligation, (B) direct action which could reasonably be expected to impair the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to Revolving Collateral Agent’s rights in the Collateral Agent, (C) 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 other than Permitted Sales and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent, and (D) enforce, at the expense granting 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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 thereonPermitted Liens; and
(iiiv) it shall use its commercially reasonable efforts to keep in full force and effect not sell, transfer or assign (by operation of law or otherwise) any Supporting Obligation or Collateral Support relating to any Receivable in excess of $500,000except as Permitted Sales.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) other than in except for the ordinary conduct of its business or the extension of payment terms of markers of gaming patrons (including credit arrangements pursuant to Section 1339 of the New York State Racingsecurity interest created by this Agreement, Pari-Mutuel Wagering and Breeding Law and other Gaming Laws), and except as otherwise provided in subsection (ii) below, during the continuance of an Event of Default, such Grantor it shall not (A) grant create or suffer to exist any extension Lien upon or renewal of the time of payment of any Receivable, (B) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than of the total unpaid balance Collateral, except Permitted Liens, and such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 4.1(a)(vii) and shall defend the Collateral, such security interest and such priority, against all Persons at any time disputing such security interest or the priority thereof, (C) release, wholly or partially, any Person liable for the payment thereof, or (D) allow any credit or discount thereon;
(ii) at it shall not produce, use or permit any time following the occurrence and during the continuation Collateral to be used unlawfully or in violation of an Event any provision of Defaultthis Agreement, the Collateral Agent shall have Intercreditor Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the right at any time to (A) notify, or require any Grantor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation, (B) 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, (C) 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 (D) 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 an Investment Account “controlled” (for purposes of the UCC) by the Collateral Agent (it being understood that each Grantor agrees to promptly comply with any reasonable request of the Collateral Agent to establish or enter into a Control Agreement with respect to such an Investment 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; andCollateral;
(iii) it shall use its commercially reasonable efforts not change such Grantor's name, identity, corporate structure (e.g., by merger, amalgamation, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to keep the Collateral Agent a completed Pledge Supplement, substantially in full force and effect any Supporting Obligation or Collateral Support relating the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) Business Days prior to any Receivable 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 excess 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 $500,000the Collateral Agent's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a "first-in, first-out" basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) 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 the Collateral or any portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vi) it shall bear and pay all expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral and all other payments required to be made by Collateral Agent to any Person to realize upon any Collateral;
(vii) Collateral Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Collateral Agent's actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Grantor's sole risk;
(viii) it shall not take or permit any action which could impair the Collateral Agent's rights in the Collateral except as otherwise in accordance with the Intercreditor Agreement; and
(ix) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise in accordance with the Term Loan Agreement and the Intercreditor Agreement.
Appears in 1 contract
