Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any Payor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts. 12.2 From time to time as requested by Purchaser, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Purchaser may use the Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200. 12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser. 12.4 Seller shall pay when due all payroll, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require. 12.5 Seller shall not create, incur, assume or permit to exist any additional debt by the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below).
Appears in 2 contracts
Samples: Factoring and Security Agreement, Factoring and Security Agreement (Sunvalley Solar, Inc.)
Covenants by Seller. 12.1 8.1 Seller warrants that all Purchased Accounts are and, at the time of assignment to Purchaser, will be bona fide and existing obligations of customers arising out of the sale of goods and/or the provision of services in the ordinary course of business, free and clear of all setoffs, liens, security interests and encumbrances.
8.2 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accountsthe accounts or any other Collateral which includes a monetary obligation, (b) compromise or settle any of its Accounts the accounts or any such other Collateral for less than the full amount thereof, (c) release in whole or in part any Payoraccount debtor or other person liable for the payment of any of the accounts or any such other Collateral, or (d) grant any credits, discounts, allowances, deductionsdeduction, return authorizations or the like with respect to any of the Accountsaccounts or any such other Collateral.
12.2 8.3 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such productionSeller.
8.4 ANY REMITTANCE OR PAYMENT MADE TO SELLER BY AN ACCOUNT DEBTOR ON WHICH AN ACCOUNT HAS BEEN ASSIGNED TO PURCHASER, SHALL BE HELD IN TRUST AS PURCHASER'S PROPERTY AND SELLER PROMISES AND COVENANTS TO IMMEDIATELY DELIVER SAME TO PURCHASER UNCASHED. THIS INCLUDES PAYMENTS ON INVOICES WHICH MAY NOT HAVE BEEN ASSIGNED (FACTORED) BUT ARE NEVERTHELESS FROM AN ACCOUNT DEBTOR FOR WHICH OTHER INVOICES HAVE BEEN ASSIGNED (FACTORED). Seller will allow a third party grants to conduct due diligence on the Collateral and books and records once a year, at Purchaser power of attorney to endorse Seller's expense. This annual due diligence expense shall not exceed $200name on any and all remittances.
12.3 8.5 Before sending any Invoice to invoice evidencing an Account Debtorto the account debtor, Seller shall xxxx mark same with a notice of assignment and a duty to pay the Notation, or xxxh other notation as Purchaser shall have advised Seller in the form and manner as may be required by Purchaserwriting.
12.4 8.6 Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require, and further, upon Purchaser's request, Seller shall execute and/or authorize all financing statements and an Internal Revenue Service Form 8821 (authorizing the Service to send copies of notices to Purchaser).
12.5 8.7 Seller shall not createnot, incur, assume or permit without the prior written consent of Purchaser suffer to exist any additional debt lien (including any encumbrance or security interest) of any kind upon any of its assets, whether now owned or hereafter acquired.
8.8 Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, any and all information concerning such insurance carried; (b) as requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
8.9 The net amount on any Purchased Account shall be legally owing by such customer, and payment by the Sellercustomer accordingly to the terms of the invoice including, except as approved without limitation, payment with any applicable late fee, penalty, charge or interest, shall not violate any federal, state or local law, statute, rule or regulation.
8.10 Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 3.2 hereof, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to PurchaserSeller of the amount of any payment on account of a Purchased Account.
8.11 Seller represents that the seller's principal place of business is located at 1840 Centre Point Drive, excluding Permitted Indebtedness (as defined below)Naperville, IL 00000. Xx Xxxxxx xx x xxxxxxxxxxx xx xxxxx xxxxxx, xxx State of incorporation or organization is Wisconsin.
Appears in 1 contract
Samples: Assignment of Accounts and Security Agreement (Active Link Communications Inc)
Covenants by Seller. 12.1 13.1 After written notice by Purchaser to Seller, and automatically, without notice, after notice following an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, not (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereofamount, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, or return authorizations or for any Accounts, in each case, except as set forth in Seller’s Master Distribution Agreements (provided that no such agreement may do any of the like foregoing with respect to any of the Accountsamount owing under an Account or any invoice already issued by Seller with respect to an Account).
12.2 From time 13.2 Seller must keep at its principal place of business for a period of five years all books of account and business records customary for the industry, which books and records are subject to time as requested inspection by Purchaser, Purchaser and its agents and representatives during normal business hours. Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Seller's books and recordsCollateral, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, as Purchaser may request. If an Event .
13.3 Seller must give Purchaser 5 business days’ prior written notice of Default has occurredany change to its present name, Purchaser may use the Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection address of Accounts and realization on other Collateral as Purchaser deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and its headquarters or where its books and records once a yearare located, at Seller's expense. This annual due diligence expense shall not exceed $200and any change to its form or jurisdiction of organization.
12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 13.4 Seller shall pay when due all payroll, sale, use of its payroll and other taxes, and shall provide proof thereof of payment to Purchaser in such form as Purchaser shall reasonably requirePurchaser.
12.5 13.5 Seller shall not create, incur, assume or permit to exist the existence of any additional debt lien upon any Collateral without prior consent of Purchaser.
13.6 Seller shall provide Purchaser, within 2 business days of receipt by the Seller, except as approved copies of any business or legal notices, summonses, complaints, or other proceedings received by Seller.
13.7 Seller shall pay to Purchaser in writing on the next banking day following the date of receipt by Seller the amount of (a) any payment on account of a Purchased Account; and subject to (b) after the occurrence of an Intercreditor Agreement in form and substance acceptable to PurchaserEvent of Default, excluding Permitted Indebtedness (as defined below).any payment on account of any Account. sf-0000000
Appears in 1 contract
Samples: Invoice Purchase Agreement (Marrone Bio Innovations Inc)
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, 13.1 Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Purchased Accounts, (b) compromise or settle any of its the Purchased Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Purchased Accounts.
12.2 13.2 Seller agrees to furnish on a monthly basis an aging of accounts receivable, an aging of accounts payable, and a financial statement package to consist of a balance sheet and profit and loss statement.
13.3 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's ’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredSeller shall pay Purchaser audit fees not to exceed $850 per day, plus out-of-pocket expenses per audit (“Audit Fees”). Without expense to Purchaser, Purchaser may use the any of Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser Purchaser, at Seller's expense ’s expense, all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such productionSeller. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx mxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 13.4 Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 13.5 Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any assets in which Purchaser now or hereafter holds a security interest.
13.6 Notwithstanding Seller’s obligation to pay the Misdirected Payment Fee, Seller shall pay to Purchaser on the next banking day following the date of receipt by Seller the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below)amount of any payment on account of a Purchased Account.
Appears in 1 contract
Samples: Factoring and Security Agreement (Zoo Entertainment, Inc)
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 . From time to time as requested by Purchaser, but not more than once per year at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such productionSeller. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 . Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 . Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any assets in which Purchaser now or hereafter holds a security interest. Notwithstanding Seller's obligation to pay the Misdirected Payment Fee, Seller shall pay to Purchaser on the next banking day following the date of receipt by Seller the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below)amount of any payment on account of a Purchased Account.
Appears in 1 contract
Samples: Factoring and Security Agreement (Driftwood Ventures, Inc.)
Covenants by Seller. 12.1 9.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Accounts, (b) compromise or settle any of its the Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 9.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 9.3. Before sending any Invoice to an Account Debtor, Seller shall xxxx mark same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 9.4. Seller shall pay when due all payrollpayroll taxes, sale, use Goods and Services Tax and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 9.5. Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any Collateral now owned or hereafter acquired by the Seller, except other than (i) a security interest in all of the Collateral in favour of Barry Seigel, Jeffrey Greenberg and Mark Madigan and (ii) a securixx xxxxxxxx in xxxxxx xx Xxxxxx Gunnxx & Xx., XXC and others, which security interests shalx xx xxxxxxxxate to the security interest in favour of the Purchaser granted under Section 6.1 hereof.
9.6. Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as approved usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, excluding Permitted Indebtedness any and all information concerning such insurance carried; (b) as defined below)requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
9.7. Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
9.8. Seller shall indemnify Purchaser from any loss arising out of the assertion of any Avoidance Claim and shall pay to Purchaser on demand the amount thereof. Seller shall notify Purchaser within two business days of it becoming aware of the assertion of an Insolvency Event.
Appears in 1 contract
Samples: Factoring and Security Agreement (Tarpon Industries, Inc.)
Covenants by Seller. Seller hereby covenants with Purchaser as follows:
12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event Upon execution of Defaulta Schedule of Accounts, Seller shall not, without the prior written consent of Purchaser in each instance, (ai) grant any extension of time for payment of any of its Accounts, (bii) compromise or settle any of its Accounts for less than the full amount thereof, (ciii) release in whole or in part any Account Debtor or Payor, or (div) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 From time to time-to-time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default Default, and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 Before sending any Invoice to an Account DebtorDebtor or Payor, Seller shall xxxx mxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser. Each instance in which any Invoice is sent to an Account Debtor or Payor without the required notice of assignment shall result in Seller paying to Purchaser the Missing Notation Fee.
12.4 Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Seller shall not create, incur, assume or permit to exist any additional debt lien upon, or with respect to any assets comprising the Collateral, in which Purchaser now or hereafter holds a security interest.
12.6 Notwithstanding Seller's obligation to pay the Misdirected Payment Fee, Seller shall pay to Purchaser on the next banking day following the date of receipt by Seller the Selleramount of any payment made on a Purchased Account.
12.7 Seller shall, except as approved at all times, maintain full and complete books and records concerning all of its Accounts whether or not the Account is included in the Purchased Accounts. Such books and records shall contain full and complete records of all sales, purchases and transactions of any and every nature had by Purchaser Seller in writing and subject its business.
12.8 During the Term of this Agreement Seller agrees not to an Intercreditor Agreement in form and substance acceptable offer to factor, sell, assign or transfer or actually factor, sell, assign or transfer any of its Accounts to any other person other than Purchaser, excluding Permitted Indebtedness (as defined below).
Appears in 1 contract
Samples: Factoring and Security Agreement (DLR Funding, Inc.)
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, 10.1. Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Accounts, (b) compromise or settle any of its the Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 10.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have unrestricted access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of where the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefromtherefrom as Purchaser may request.
10.3. Seller shall furnish to Purchaser on a monthly basis such financial statements and other financial information as Purchaser may from time to time request. All such financial statements shall show all material contingent liabilities and shall accurately and fairly present the results of operations and the financial condition of Seller at the dates and for the period indicated. Without limitation of the foregoing, without Seller shall furnish to Purchaser the following statements:
10.3.1. Income statements of the Seller dated as of the last day of each month, to be delivered within 20 days after the end of each month and certified by Seller as true, correct, and complete, and yearly income statements of Seller to be delivered within 90 days after the end of each fiscal year and certified by Seller as true, correct, and complete.
10.3.2. Schedules containing the aging of accounts receivable and accounts payable of the Seller dated as of the last day of each month, to be delivered within 5 business days after the end of each month and certified by the Seller to be true, correct and complete.
10.3.3. Annual balance sheets and financial statements from Seller within 105 days of the end of each fiscal year of the reporting party, which are true and correct in all respects, have been prepared in accordance with GAAP, and fairly present the financial condition(s) of the person(s) referred to therein as of the date(s) indicated.
10.3.4. If Seller fails to furnish or cause to be furnished promptly any report required above, or if Purchaser reasonably deems such reports to be unacceptable, Purchaser may elect (in addition to exercising any other right and remedy) to conduct an audit of all books and records of Seller and/or prepare the statement or statements which Seller failed to procure and deliver. Such audit shall be made and such statement or statements shall be prepared by an independent firm of certified public accountants to be selected by Purchaser. Seller shall pay all reasonable expenses of the audit and other services, which expenses shall be immediately due and payable.
10.4. Without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 10.5. Before sending any Invoice to an Account Debtor, Seller shall xxxx mxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 10.6. Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 10.7. Except as is set forth in the Intercreditor Agreement by and between Seller, Purchaser and YA Global Investments, L.P., Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any Collateral now owned or hereafter acquired by Seller with the Sellersole exception of existing liens filed on Sellers equipment.
10.8. Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, except to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as approved usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable its reasonable discretion. Seller shall furnish to Purchaser: (a) upon written request, excluding Permitted Indebtedness any and all information concerning such insurance carried; (b) as defined below)requested by Purchaser, loss payee endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) day’s prior written cancellation notice to Purchaser.
10.9. Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
Appears in 1 contract
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any Payor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 From time to time as reasonably requested by Purchaser, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and any premises where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral including Seller’s books, records and Seller's books and recordscomputers, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts and all electronically stored information therefrom, without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Seller shall provide Purchaser may use the with reasonable access to Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, to promptly disclose and deliver to Purchaser at Seller's ’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200Purchased Accounts.
12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and which describes, among other things, a duty to pay Purchaser Purchaser, in the form and manner as may be required by Purchaser.
12.4 Seller shall pay when due all payroll, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Seller shall not create, incur, assume or permit to exist any additional debt by the ownership interests in Seller, ’s Purchased Accounts or Security Interest or any other form of lien upon or with respect to any assets in which Purchaser now or hereafter holds a Security Interest or in those Accounts in which Purchaser acquires an ownership interest except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding for Permitted Indebtedness Liens (as defined below) unless Seller obtains the written consent of Purchaser and an Intercreditor Agreement between Purchaser and such other party in a form and content acceptable to Purchaser. For purposes of clarity, no provision of this Agreement shall be interpreted as either preventing the Seller from conducting bona fide equity financings or requiring notice to or consent of the Purchaser in the event of such financings. “Permitted Liens” are: (a) Liens existing on the date of this agreement and shown on the perfection certificate or arising under this Agreement; (b) liens for taxes, fees, assessments or other government charges or levies, either not delinquent or being contested in good faith and for which Seller maintains adequate reserves on its Books, if they have no priority over Purchaser’s Security Interests; (c) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described in (a) and (b), but any extension, renewal or replacement lien must be limited to the property encumbered by the existing lien and the principal amount of the indebtedness may not increase; (d) liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under Sections 16.1; and (e) liens in favor of other financial institutions arising in connection with Seller’s deposit and/or securities accounts held at such institutions, provided that Purchaser has a perfected Security Interest in the amounts held in such deposit and/or securities accounts in accordance with the terms of this Agreement and are identified to the Purchaser prior to execution of this Agreement.
12.6 Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner as usually maintained by owners of similar businesses and properties in similar geographic areas. Seller shall furnish to Purchaser upon written request: (a) any and all information concerning such insurance carried; (b) lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) day’s prior written cancellation notice to Purchaser.
12.7 Seller shall pay to Purchaser on the 2nd banking day following the date of receipt by Seller the amount of any payment made on account of a Purchased Account.
12.8 Seller shall furnish Purchaser with full financial statements and other documents and information, including, but not limited to, proof of payment and/or compliance with all federal, state and/or local tax requirements, within forty five (45) days from the end of each of Seller’s first three fiscal quarters, and seventy five (75) days from the end of Seller’s last fiscal quarter, in each case in the form filed by the Seller with the U.S. Security and Exchange Commission. Seller shall maintain a standard and modern system of accounting in accordance with Generally Accepted Accounting Principles. Seller agrees to permit Purchaser and any of its employees, officers or agents, on reasonable advance written notice and during normal business hours, access to and examination of Seller’s records and books. The Seller shall provide Purchaser monthly financial reports relating to Seller’s accounts payable and accounts receivable aging, as soon as available but no later than thirty (30) days after the last day of the month including, but not limited to, detailed description of the Collateral per Purchaser’s specifications, Budget (as soon as available), financial statements (unaudited income statement, balance sheet and cash flow statement), as well as usual and customary reports for a transaction of this nature.
Appears in 1 contract
Samples: Factoring and Security Agreement (Wave Systems Corp)
Covenants by Seller. 12.1 12.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any Payor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 12.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's ’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's ’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 12.3. Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 12.4. Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 12.5. Seller shall not create, incur, assume or permit to exist exist, any additional debt lien upon or with respect to any assets in which Purchaser now or hereafter holds as a security interest.
12.6. Notwithstanding Seller’s obligation to pay the Misdirected Payment Fee, Seller shall pay to Purchaser on the next banking day following the date of receipt by the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below)the amount of any payment on account of a Purchased Account.
Appears in 1 contract
Covenants by Seller. 12.1 8.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Purchased Accounts, (b) compromise or settle any of its the Purchased Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations authorizations, or the like with respect to any of the Purchased Accounts.
12.2 8.2 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's ’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies supplies, and premises for the collection of Accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's ’s expense all financial information, books and records, work papers, management reports reports, and other information in their possession relating to Seller.
8.3 Before sending any invoice evidencing a Purchased Account to the Account Debtor, Seller shall xxxx same with the a notice of assignment as may be required by Purchaser.
8.4 Seller shall pay when due all payroll and other taxes and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
8.5 Seller shall not create, incur, assume, or permit to exist any Lien upon or with respect thereto irrevocably waives to any privilege that may otherwise preclude Collateral now owned or hereafter acquired by Seller.
8.6 Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such productionrisks (in any event, including but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in its sole discretion. Seller will allow a third party shall furnish to conduct due diligence Purchaser: (a) upon written request, any and all information concerning such insurance carried; (b) as requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
8.7 Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 3.2.1 hereof, Seller shall deliver in kind to Purchaser on the Collateral and books and records once next Business Day following the date of receipt by Seller of the amount of any payment on account of a year, at Seller's expense. This annual due diligence expense shall not exceed $200Purchased Account.
12.3 8.1 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 Seller shall pay when due all payroll, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Seller shall not create, incur, assume or permit to exist any additional debt by the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below).
Appears in 1 contract
Samples: Factoring and Security Agreement (Tri-S Security Corp)
Covenants by Seller. 12.1 12.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any Payor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like not specifically authorized in the applicable agreement with respect to any of the Accounts.
12.2 12.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence and during the continuance of an Event of Default) any of the Collateral and Collateral, including Seller's ’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's ’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 12.3. Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 12.4. Seller shall pay when due all payroll, sale, use payroll and other taxesmaterial taxes except for those contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained in accordance with GAAP, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 12.5. Seller shall not not: (a) create, incur, assume or permit to exist exist, any additional debt lien upon or with respect to any assets in which Purchaser now or hereafter holds as a security interest or (b) incur any indebtedness for borrowed money that has not been disclosed to Purchaser as of the date hereof.
12.6. Notwithstanding Seller’s obligation to pay the Misdirected Payment Fee, Seller shall pay to Purchaser on the next banking day following the date of receipt by the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below)the amount of any payment on account of a Purchased Account.
Appears in 1 contract
Samples: Financing and Security Agreement (Sito Mobile, Ltd.)
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, 10.1 Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Purchased Accounts, (b) compromise or settle any of its the Purchased Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Purchased Accounts.
12.2 10.2 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have unrestricted access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of where the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefromtherefrom as Purchaser may request.
10.3 Seller shall furnish to Purchaser on a monthly basis such financial statements and other financial information as Purchaser may from time to time request. All such financial statements shall show all material contingent liabilities and shall accurately and fairly present the results of operations and the financial condition of Seller at the dates and for the period indicated. Without limitation of the foregoing, without Seller shall furnish to Purchaser the following statements:
10.3.1 Income statements of the Seller dated as of the last day of each month, to be delivered within 20 days after the end of each month and certified by Seller as true, correct, and complete, and yearly income statements of Seller to be delivered within 90 days after the end of each fiscal year and certified by Seller as true, correct, and complete.
10.3.2 Schedules containing the aging of accounts receivable and accounts payable of the Seller dated as of the last day of each month, to be delivered within 5 business days after the end of each month and certified by the Seller to be true, correct and complete.
10.3.3 Annual balance sheets and financial statements from Seller within 90 days of the end of each fiscal year of the reporting party, which are true and correct in all respects, have been prepared in accordance with GAAP, and fairly present the financial condition(s) of the person(s) referred to therein as of the date(s) indicated.
10.3.4 If Seller fails to furnish or cause to be furnished promptly any report required above, or if Purchaser reasonably deems such reports to be unacceptable, Purchaser may elect (in addition to exercising any other right and remedy) to conduct an audit of all books and records of Seller and/or prepare the statement or statements which Seller failed to procure and deliver. Such audit shall be made and such statement or statements shall be prepared by an independent firm of certified public accountants to be selected by Purchaser. Seller shall pay all reasonable expenses of the audit and other services, which expenses shall be immediately due and payable with interest thereon at the rate of twelve percent (12%) per annum.
10.4 Without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 10.5 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 10.6 Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 10.7 Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any Collateral now owned or hereafter acquired by Seller.
10.8 Seller shall maintain insurance on all insurable property owned or leased by Seller in the Sellermanner, except to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as approved usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, excluding Permitted Indebtedness any and all information concerning such insurance carried; (b) as defined below)requested by Purchaser, loss payee endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) day's prior written cancellation notice to Purchaser.
10.9 Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee, Seller shall deliver in kind to Purchaser no later than the second business day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account. Such delivery shall be to a P.O. box at_______________________ (address) or to the offices of Purchaser: 0000 Xxxxxx Xxxx, Suite 750, Dallas, TX 75225.
Appears in 1 contract
Samples: Factoring and Security Agreement (Edge Technology Group Inc)
Covenants by Seller. 12.1 After written notice by Purchaser to Seller, Seller hereby covenants and automatically, without notice, after an Event agrees with Buyer as follows:
a. At all times from the date of Defaultthis Agreement until the Closing, Seller shall notmaintain in force insurance coverage upon the Property in the amounts and types currently carried by Seller and no policies shall be canceled, without the changed or allowed to expire prior written consent of Purchaser in each instanceto Closing, (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle any of its Accounts for less than the full amount thereof, (c) release in whole or in part any Payor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like including fire and extended coverage and public liability insurance with respect to any of the Accounts.
12.2 From time damage or injury to time as requested by Purchaser, Purchaser person or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Purchaser may use the Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence property occurring on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.Property;
12.3 Before sending any Invoice to an Account Debtorb. At all times from the date of this Agreement until the Closing, Seller shall xxxx same with a notice keep and perform all of assignment and a duty the obligations to pay Purchaser in be performed by the form and manner as may landlord under the Tenant Leases, including without limitation any maintenance of the Property to be required performed by Purchaser.the landlord under such Tenant Leases;
12.4 c. Prior to Closing, Seller shall pay when due all payrollmanage the Property in accordance with the prudent real estate operations as being presently managed and no change or modification will be made in rental policies or rental agreements. After the expiration of the Feasibility Period, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Seller shall not create, incur, assume enter into any agreements with respect to the operation or permit to exist any additional debt by management of the SellerProperty that will affect the Property beyond Closing, except in the ordinary course of business or as approved by Purchaser Buyer in writing upon a request from Seller; and subject Seller will not make any alterations or modifications of the Property;
d. Prior to an Intercreditor Agreement Closing, Seller shall maintain, repair and make replacements (but the making of replacements shall be done only after obtaining Buyer's written consent, which shall not be unreasonably withheld), to and of the buildings and other improvements on the Property, in form good condition and substance acceptable repair at a level at least consistent with the level of maintenance, repair and replacement being undertaken by Seller as of the date of this Agreement, except for normal wear and tear and any casualty or condemnation therefrom without replacing them with substantially similar items nor shall Seller in any manner neglect the Property;
e. Seller shall cause all trade accounts and costs and expenses of operation and maintenance of the Property incurred prior to PurchaserClosing to be promptly paid when due; and
f. All commissions due or to come due with respect to the Tenant Leases or any commission agreements shall be paid, excluding Permitted Indebtedness (as defined below)assumed or otherwise satisfied in full by Seller at or prior to the Closing, and the Property shall be conveyed to Buyer free and clear of all commissions and brokerage fees and all commissions or brokerage agreements with respect to Tenant Leases, and any renewals or extensions thereof.
Appears in 1 contract
Samples: Rescission of Election to Terminate & Reinstatement of Purchase Obligation (Sports Arenas Inc)
Covenants by Seller. 12.1 9.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Purchased Accounts, (b) compromise Initial or settle any of its the Purchased Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations authorizations, or the like with respect to any of the Purchased Accounts.
12.2 9.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's ’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's ’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies supplies, and premises for the collection of Accounts and realization on other Collateral as Purchaser Purchaser, in its reasonable judgement, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's ’s expense all financial information, books and records, work papers, management reports reports, and other information in their possession relating to Seller.
9.3. Before sending any invoice evidencing a Purchased Account to the Account Debtor, Seller and in respect thereto irrevocably waives any privilege that shall xxxx same with the a notice of assignment as may otherwise preclude such productionbe required by Purchaser.
9.4. Seller will allow a third party shall pay when due all payroll and other taxes and shall provide proof thereof to conduct due diligence on the Collateral and books and records once a year, at Seller's expensePurchaser in such form as Purchaser shall reasonably require.
9.5. This annual due diligence expense Seller shall not exceed $200create, incur, assume, or permit to exist any Lien upon or with respect to any Collateral now owned or hereafter acquired by Seller.
12.3 9.6. Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, any and all information concerning such insurance carried; (b) as requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
9.7. Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 4.2.1 hereof, Seller shall deliver in kind to Purchaser within five Business Day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
9.8. Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 Seller shall pay when due all payroll, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Seller shall not create, incur, assume or permit to exist any additional debt by the Seller, except as approved by Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below).
Appears in 1 contract
Covenants by Seller. 12.1 9.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accountsthe accounts or any other Collateral which includes a monetary obligation, (b) compromise or settle any of its Accounts the accounts or any such other Collateral for less than the full amount thereof, (c) release in whole or in part any Payoraccount debtor or other person liable for the payment of any of the accounts or any such other Collateral, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accountsaccounts or any such other Collateral.
12.2 9.2 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If Without expense to Purchaser, after an Event of Default has occurredDefault, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 9.3 Before sending any Invoice invoice evidencing an Account to an Account Debtor, Seller shall xxxx mark same with a notice of assignment and a duty to pay the Notatixx, or such other notation as Purchaser shall have advised Seller in the form and manner as may be required by Purchaserwriting.
12.4 9.4 Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 9.5 Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any Collateral now owned or hereafter acquired by Seller.
9.6 Seller shall maintain insurance on all insurable property owned or leased by Seller in the Sellermanner, except to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as approved usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, excluding Permitted Indebtedness any and all information concerning such insurance carried; (b) as defined below)requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
9.7 Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 4.1 hereof, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
9.8 Seller shall indemnify Purchaser from any loss arising out of the assertion of any Avoidance Claim. Seller shall notify Purchaser within two business days of it becoming aware of the assertion of an Avoidance Claim.
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Covenants by Seller. 12.1 9.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its Accountsthe Purchased Accounts Collateral which includes a monetary obligation, (b) compromise or settle any of its the Purchased Accounts Collateral for less than the full amount thereof, (c) release in whole or in part any Payoraccount debtor or other person liable for the payment of any of the Purchased Accounts Collateral, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the AccountsPurchased Accounts Collateral.
12.2 9.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours not more frequently than quarterly if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Purchased Accounts Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral Purchased Accounts Collateral, including Books and Seller's books and recordsRecords, and Seller shall permit Purchaser or its designee to make copies of such books Books and records Records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If The fee for each such examination shall be $1,000.00 per day plus expenses. Without expense to Purchaser, after an Event of Default has occurredDefault, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts accounts and realization on other the Purchased Accounts Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200Purchased Accounts Collateral.
12.3 9.3. Before sending any Invoice invoice evidencing an Account to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay the Notation, or such other notation as Purchaser shall have advised Seller in the form and manner as may be required by Purchaserwriting.
12.4 9.4. Seller shall pay when due all payroll, sale, use payroll and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 9.5. Seller shall not create, incur, assume or permit to exist any additional debt lien upon or with respect to any Purchased Accounts Collateral now owned or hereafter acquired by Seller.
9.6. Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas.
9.7. Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 4.1 hereof, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
9.8. Seller shall indemnify Purchaser from any loss arising out of the assertion of any Avoidance Claim. Seller shall notify Purchaser within two business days of it becoming aware of the assertion of an Avoidance Claim.
9.9. Seller shall furnish Buyer within thirty (30) days after the end of each month an internally prepared income statement and balance sheet prepared on a basis consistent with such statement prepared in prior months and in accordance with generally accepted accounting principles and within ninety (90) days after the end of each fiscal year of Seller, except as approved Seller's financial statements audited by Purchaser independent, certified public accountants and prepared in writing and subject to an Intercreditor Agreement in form and substance acceptable to Purchaser, excluding Permitted Indebtedness (as defined below)accordance with generally accepted accounting principles applied on a basis consistent with prior year-end statements.
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Covenants by Seller. 12.1 After written notice by Purchaser Buyer to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, : (a) grant any extension of time for payment of any of its AccountsDigital Ad Receivables, (b) compromise or settle any of its Accounts Digital Ad Receivables for less than the full amount thereof, Face Value; (c) release in whole or in part any Payor, or ; (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.
12.2 From time to time as requested by PurchaserDigital Ad Receivables. In addition, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the (i) Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, as Purchaser may request. If an Event of Default has occurred, Purchaser may use the Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of Accounts and realization on other Collateral as Purchaser deems appropriate. Seller hereby irrevocably authorizes all employees, agents, accountants and third parties, parties employed by Seller to promptly disclose and deliver to Purchaser Buyer at Seller's expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 Before sending any Invoice to an Account Debtor, Seller shall xxxx same with a notice of assignment and a duty to pay Purchaser in the form and manner as may be required by Purchaser.
12.4 Seller shall pay when due all payroll, sale, use and other taxes, and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 Collateral; (ii) Seller shall not create, incur, assume or permit to exist exist, any additional debt lien upon or with respect to the Collateral other than the lien created hereunder; and (iii) Seller shall within two (2) business days after request by the SellerBuyer provide Seller with an accounts receivables and/or an accounts payable schedule, except as approved by Purchaser in writing and subject to an Intercreditor Agreement each in form and substance acceptable satisfactory to PurchaserSeller, excluding Permitted Indebtedness (identifying all Digital Ad Receivables of Seller and any amounts due from Seller to any account debtor in respect of any Digital Ad Receivables. In the event that Xxxxx sends a notice of assignment to a Payor obligated with respect to any Digital Ad Receivable, Seller shall not direct such Payor to pay such Digital Ad Receivable to Seller or any other entity or individual, or otherwise undermine or interfere with such notice of assignment in any manner. Seller agrees that a violation of the foregoing covenant will put the value of the Collateral at risk and will cause irreparable harm to Buyer. Therefore, Xxxxx will be entitled to temporary and permanent injunctive relief to prevent such violation without the necessity of proving that actual damages are not an adequate remedy. Buyer will also be entitled to any proceeds of Purchased Digital Ad Receivables received by Seller as defined below)a result of such violation in an amount not to exceed the total Obligations.
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Covenants by Seller. 12.1 8.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of its the Purchased Accounts, (b) compromise or settle any of its the Purchased Accounts for less than the full amount thereof, (c) release in whole or in part any PayorAccount Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations authorizations, or the like with respect to any of the Purchased Accounts.
12.2 8.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all business premises of the Seller and where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral and Collateral, including Seller's books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom, without expense to Purchaser, therefrom as Purchaser may request. If an Event of Default has occurredWithout expense to Purchaser, Purchaser may use the any of Seller's personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies supplies, and premises for the collection of Accounts and realization on other Collateral as Purchaser Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties, parties to promptly disclose and deliver to Purchaser at Seller's expense all financial information, books and records, work papers, management reports reports, and other information in their possession relating to Seller and in respect thereto irrevocably waives any privilege that may otherwise preclude such production. Seller will allow a third party to conduct due diligence on the Collateral and books and records once a year, at Seller's expense. This annual due diligence expense shall not exceed $200.
12.3 8.3. Before sending any Invoice invoice evidencing a Purchased Account to an the Account Debtor, Seller shall xxxx same with a notice the Notice of assignment and a duty to pay Purchaser in the form and manner Assignment as may be required by Purchaser.
12.4 8.4. Seller shall pay when due all payroll, sale, use payroll and other taxes, taxes and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.
12.5 8.5. Seller shall not create, incur, assume assume, or permit to exist any additional debt Lien upon or with respect to any Collateral now owned or hereafter acquired by Seller.
8.6. Seller shall maintain insurance on all insurable property owned or leased by Seller in the Sellermanner, except to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as approved usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in writing and subject to an Intercreditor Agreement in form and substance acceptable its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, excluding Permitted Indebtedness any and all information concerning such insurance carried; (b) as defined below)requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser.
8.7. Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee pursuant to Section 3.2.1. hereof, Seller shall deliver in kind to Purchaser on the next Business Day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.
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