Further Assurances Covenants. (a) The Grantor will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l). The Grantor shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected. (b) The Grantor will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright Office) that from time to time may be necessary or desirable, or that the Secured Party may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) to obtain the full benefits of this Agreement, or to enable the Secured Party to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor hereby authorizes the Secured Party to execute and file financing statements or continuation statements without the Grantor's signature appearing thereon. The Grantor agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral. (c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the Grantor's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured Party's account subject to the Secured Party's instructions. (d) The Grantor shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records in such manner as the Secured Party may reasonably require in order to reflect the Security Interests. (e) The Grantor will immediately deliver and pledge each Instrument to the Secured Party, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event of Default shall have occurred and be continuing, the Grantor may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document). (f) The Grantor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor. (g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee. (h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property. (i) Without the prior written consent of the Secured Party, the Grantor will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit Agreement. (j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies. (k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement. (l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent. (m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Security Agreement (Coleman Co Inc)
Further Assurances Covenants. (aA) The Grantor Company will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(M); . The Company will not change (iii) the location of its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating thereto from a the applicable location described in its Perfection Certificate to a location not described in its the Perfection Certificate unless it shall have given the Secured Party not less than 30 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(M); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l). The Grantor shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bB) The Grantor Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code UCC and any filings with the registration in the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, of any unregistered Patent, Trademark or Copyright that is material to the business of the Company, now owned or later acquired by the Company) that from time to time may be necessary or desirable, or that the Secured Party Agent may request, in order to create, preserve, perfect, confirm preserve or validate perfect the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Agent, and appoints the Agent as its true and lawful attorney (with full power of substitution, in the name of the Company, the Secured Party Parties or otherwise, for the sole use and benefit of the Secured Parties), to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(cC) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyprocessors, the Grantor Company shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyAgent's account subject to the Secured PartyAgent's instructions.
(dD) The Grantor Company shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records in such manner as the Secured Party Required Lenders may reasonably require in order to reflect the Security Interests.
(eE) The Grantor Company will immediately deliver and pledge each Instrument to the Secured PartyAgent, appropriately endorsed to the Secured PartyAgent, PROVIDED provided that so long as no Event of Default shall have occurred and be continuing, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f5(B) shall apply) received by it in the ordinary course of business and the Secured Party Agent shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartyAgent, against trust receipt or like document).
(fF) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, including Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party Parties hereunder if upon the occurrence and during the continuance of an Event of Default shall have occurred and be continuingDefault, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound business judgment unless such extension, renewal or settlement results in causing such Account to not be an Eligible Receivable and thereby causes the aggregate unpaid balance of Working Capital Borrowings to exceed the Borrowing Base and (2ii) a refund or credit due as a result of returned or damaged merchandisemerchandise or as a discount for prompt payment, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' including attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyAgent, shall be borne by the GrantorCompany.
(gG) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Lenders through the Agent, the Grantor Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Agent so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Agent or its designee.
(hH) The Grantor shall, (i) as soon as practicable after Upon the date hereof, in occurrence and during the case continuance of any single piece Event of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on Default, the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, Company shall deliver to the Secured Party Agent any and all certificates of title, applications for title or similar evidence of ownership of the Equipment owned at such Equipment time by the Company and shall cause the Secured Party Agent to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and Company shall not permit any such items to become a fixture to real estate (unless the Agent has a first priority Lien thereon pursuant to the Mortgage) or an accession to other personal property.
(iI) Without the prior written consent of the Secured PartyRequired Lenders, the Grantor Company will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except thatexcept, subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, as permitted under the Grantor may (x) sellCredit Agreement including Section 8.06, lease or exchange Inventory and surplus or worn-out Equipment whereupon, in the ordinary course case of business and such a sale or exchange, the Security Interests created hereby in such item (ybut not in any Proceeds arising from such sale or exchange) consummate shall cease immediately without any Asset Sale or other disposition permitted by further action on the terms part of the Credit Agent.
(J) The Company will, promptly upon request, provide to the Agent all information and evidence it may reasonably request concerning the Collateral to enable the Agent to enforce the provisions of this Agreement.
(jK) Within 10 days following From time to time upon request by the execution Agent, the Company shall, at its cost and expense, cause to be delivered to the Secured Parties an opinion of counsel satisfactory to the Agent as to such matters relating to the transactions contemplated hereby as the Required Lenders may reasonably request.
(L) The Company shall promptly notify the Agent if it knows that any application or registration relating to any Patent, Trademark, or Copyright may become abandoned or canceled or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, or any court) regarding the Company's ownership of any Patent, Trademark or Copyright, its right to register the same, or to keep and maintain the same. In the event that any right to any Patent, Patent License, Trademark, Trademark License Copyright or Copyright License is infringed, misappropriated or diluted by a third party, the Company shall notify the Agent promptly after it learns thereof and shall, unless the Company shall reasonably determine that any such action would be of negligible economic value, take such action as the Company shall reasonably deem appropriate under the circumstances to protect such Patent, Patent License, Trademark, Trademark License Copyright or Copyright License. In no event shall the Company, either itself or through any agent, employee or licensee, file an application for the registration of any material Patent, Trademark or Copyright with the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, or with any similar office or agency in any other country or any political subdivision thereof, unless it promptly executes, delivers and files any and all agreements, instruments, documents and papers, if any, the Agent may request to evidence the Security Interest in such Patent, Trademark or Copyright and the goodwill and general intangibles of the Company relating thereto or represented thereby. The Company hereby appoints the Agent as its true and lawful attorney (with full power of substitution, in the name of the Company, the Secured Parties or otherwise, for the sole use and benefit of the Secured Parties) to execute, deliver and file all such writings for the foregoing purposes upon failure by the Company to promptly execute, deliver or file any such writings or otherwise fail to comply with any provision of this Agreementparagraph; (L) such power, being coupled with an interest, shall be irrevocable until the Secured Obligations are paid in full.
(M) Not more than six months nor less than 30 days prior to the date on which the Company proposes to take any such action contemplated by Section 4(A), the Grantor Company shall have given notice to the Agent of such proposed action, and, at the Company's cost and expense, caused to be delivered to the Secured Parties with such notice, an opinion of counsel, satisfactory to the Agent, substantially in the form of Exhibit B, to the effect that all financing statements and amendments or supplements thereto, continuation statements and other documents required to be recorded or filed in order to perfect and protect the Security Interests for a period (and after giving effect to the proposed action that is the subject of such notice), specified in such opinion, continuing until a date not earlier than eighteen months from the date of such opinion, against all creditors of and purchasers from the Company have been filed in each filing office necessary for such purpose and that all filing fees and taxes, if any, payable in connection with such filings have been paid in full.
(N) On or prior to the Closing Date, the Company will cause the Secured Party Agent to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor Company will deliver to the Secured PartyAgent, upon the request of the Secured PartyAgent, the insurance policies for such insurance or certificates of insurance evidencing such coverageinsurance. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the any Secured Party or the LendersParty, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide provided that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 500,000 per claim shall be adjusted with and payable to the Secured Party Agent and provide that no cancellation, cancellation or termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party Agent of written notice thereof. The Grantor Company hereby appoints the Secured Party Agent as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any such insurance policies.
(k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Company Security Agreement (Security Capital Corp/De/)
Further Assurances Covenants. (a) The Grantor Each Obligor will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) or change the location of its chief executive office or chief place of business from a the location described in its the Perfection Certificate to a location not described of such Obligor unless, in its Perfection Certificate unless it each case, such Obligor shall have given the Secured Party not less than Administrative Agent at least 30 days' day's prior notice thereof and delivered to the Banks an opinion of counsel with respect thereto at the cost and expense of such Obligor, in accordance with Section 4(l)form and substance reasonably satisfactory to the Administrative Agent, to the effect that, after giving effect to such change in name, identity, corporate structure or location, the Security Interests in the Collateral of such Obligor shall remain perfected; or (iii) provided that the locations where it keeps or holds provisions of the foregoing sentence shall not apply to any Collateral (change in the location of the chief executive office of any Obligor from any location in New York City to any other than Inventory location in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l)New York City. The Grantor Each Obligor shall not in any event change the location of any of its Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(b) The Grantor Each Obligor will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement agreement, 133 recording or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code UCC and any additional of substitute filings with the United States Patent and Trademark Office or the United States Copyright OfficePTO) that from time to time may be necessary or desirable, or that the Secured Party Administrative Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Administrative Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the CollateralCollateral of such Obligor; PROVIDED provided that with respect to foreign intellectual property, the Grantor no Obligor shall only be required to take any such action as with respect to any Trademark that is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoingnot a Specified Trademark or any Trademark License that is not a Specified Trademark License. To the extent permitted by applicable law, the Grantor each Obligor hereby authorizes the Secured Party Administrative Agent to execute and file financing statements or continuation statements without the Grantorsuch Obligor's signature appearing thereon. The Grantor Each Obligor agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Each Obligor shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements or any filings with the PTO concerning the CollateralCollateral of such Obligor.
(c) If any Collateral is at any time in Within 30 Domestic Business Days after the possession or control end of each Fiscal Quarter, each Obligor shall provide to the Administrative Agent (i) copies of all applications for (1) the registration of any warehouseman, bailee Patent or any Patent License and (2) the registration of any Specified Trademark or Specified Trademark License filed by such Obligor during such Fiscal Quarter, (ii) a Patent Security Agreement executed by such Obligor with respect to each Patent or Patent License of such Obligor described in clause (1), (iii) a Trademark Security Agreement with respect to each Specified Trademark and Specified Trademark License described in clause (2) and (iv) a list of each Patent and Trademark that such Obligor has determined to abandon, or that such Obligor has determined not to maintain the registration of, during the immediately succeeding Fiscal Quarter, and a brief statement of the Grantor's agents reasons on the basis on which such Obligor has made such determination (it being understood that nothing in this clause (iv) shall be construed to limit or processors upon modify in any manner the occurrence obligations of such Obligor under subsection (d) below). Upon delivery of a Patent Security Agreement or a Trademark Security Agreement by any Obligor, Schedule 2A or 2B, as the case may be, shall be deemed to have been amended to reflect the Patents and during Patent Licenses or Specified Trademarks and Specified Trademark Licences with respect to which such Patent Security Agreement or a Trademark Security Agreement, as the continuance of case may be, relates. If an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral Obligor has filed no applications for the Secured Party's account subject registration of any Patent, License, Specified Trademark or Specified Trademark License during any Fiscal Quarter, such Obligor shall, within 30 Domestic Business Days after the end of such Fiscal Quarter, provide a certificate to the Secured Party's instructions.Administrative Agent certifying the same. 134
(d) The Grantor shall keep full Each Obligor will take all steps which it reasonably determines are necessary and accurate books appropriate in the circumstances, including, without limitation, in any proceeding before the PTO, or any similar office or agency in any other country or any political subdivision thereof, to maintain and records relating pursue each application (and to obtain the relevant registration) and to maintain each registration of its material Patents and Specified Trademarks, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability except, in each case, for such applications or registrations which such other Obligor determines in good faith are no longer useful or material to the Collateral, and stamp or otherwise xxxx business of such books and records in such manner as the Secured Party may reasonably require in order to reflect the Security InterestsObligor.
(e) The Grantor will immediately deliver and pledge each Instrument to In the Secured Partyevent that any material Patent or Specified Trademark is infringed, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event of Default shall have occurred and be continuingmisappropriated or diluted by a third party, the Grantor may retain for collection in Obligor that holds such Patent or Trademark shall promptly notify the ordinary course any Instruments (Administrative Agent after it learns thereof, if such infringement, misappropriation or dilution could reasonably be expected to have a Material Adverse Effect, and take such other than checks and drafts constituting payments in respect of Accountsactions as such Obligor shall reasonably deem appropriate under the circumstances, or as the Administrative Agent shall reasonably request, to protect such Patent or Specified Trademark, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document)case may be.
(f) The Grantor Each Obligor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to notify the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee.
(h) The Grantor shall, (i) Administrative Agent as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of if such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured Party, the Grantor will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, Obligor knows that any application or registration relating to any Copyright, material Patent or Specified Trademark which is material to the Grantor's business may become abandoned or dedicated, dedicated or of any adverse determination or development (including, without limitation, including the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, PTO or any courtcourt or tribunal) regarding the Grantorsuch Obligor's ownership of any Copyright, material Patent or Trademark which is material to the Grantor's businessSpecified Trademark, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable .
(without accounting for any liens on the proceeds of any recovery)g) Each Obligor will, promptly xxx for infringementupon request, misappropriation or dilution provide to the Administrative Agent all information and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party evidence it may reasonably request concerning its Collateral to evidence enable the Security Interests in such Copyright, Patent or Trademark and Administrative Agent to enforce the goodwill and general intangibles provisions of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in fullthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Venator Group Inc)
Further Assurances Covenants. (aA) The Grantor Company will not change (i) its name, identity or corporate structure form of organization in any manner unless it shall have given the Secured Party not less than 10 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(L); (ii) . The Company will not change the location of (i) its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating thereto from a the applicable location described in its Perfection Certificate to a location not described in its the Perfection Certificate unless it shall have given the Secured Party not less than 30 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l4(L). The Grantor Company shall not in any event change the location of any Collateral without the prior written consent of the Agent if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bC) The Grantor To the extent permitted under applicable law, the Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, including any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that from time to time may be necessary or desirable, or that the Secured Party Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Agent, and appoints the Agent as its true and lawful attorney (with full power of substitution, in the name of the Company, the Secured Party Parties or otherwise, for the sole use and benefit of the Secured Parties), to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(cD) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyprocessors, the Grantor Company shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyAgent's account subject to the Secured PartyAgent's instructions.
(dE) The Grantor Company shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such mark xxxh books and records in such manner as the Secured Party Agent may reasonably require in order to reflect the Security Interests.
(eF) The Grantor Company will immediately deliver and pledge each Instrument to the Secured PartyAgent, appropriately endorsed to the Secured PartyAgent, PROVIDED provided that so long as no Event of Default shall have occurred and be continuing, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f5(B) shall apply) received by it in the ordinary course of business and the Secured Party Agent shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartyAgent, against trust receipt or like document).
(fG) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, including Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection proceduresprocedures and the Company's customary practices) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.of
(gH) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Lenders through the Agent, to the Grantor extent permitted by applicable law the Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Agent so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Agent or its designee.
(hI) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and Company shall not permit any such items of Equipment to become a fixture to real estate (unless the Agent has a first priority Lien thereon) or an accession to other personal property.
(iJ) Without the prior written consent of the Secured PartyAgent and except in the ordinary course of business, the Grantor Company will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except thatexcept, subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, as permitted under the Grantor may (x) sellCredit Agreement including Section 8.06, lease or exchange Inventory and surplus or worn-out Equipment whereupon, in the ordinary course case of business and such a sale or exchange, the Security Interests created hereby in such item (ybut not in any Proceeds arising from such sale or exchange) consummate shall cease immediately without any Asset Sale or other disposition permitted by further action on the terms part of the Credit AgreementAgent, except the execution of UCC-3 termination statements.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(kK) The Grantor Company will, promptly upon request, provide to the Secured Party Agent all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party Agent to enforce the provisions of this Agreement.
(lL) In Not more than six months nor less than 30 days prior to each date on which the event the Grantor Company proposes to take any action contemplated by Section 4(a)(i4(A), 4(a)(ii) or 4(a)(iii)the Company shall give notice to the Agent of such proposed action, and, at the request of the Secured Party, the Grantor shall, at the GrantorCompany's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent Secured Parties with such notice, an opinion of counsel, reasonably satisfactory to the Administrative Agent, Agent and substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory C to the Administrative effect that all financing statements and amendments or supplements thereto, continuation statements and other documents required to be recorded or filed in order to perfect and protect the Security Interests
(M) The Company shall not open or maintain any bank account, money market account or investment account unless such account is first listed on Exhibit A (as updated by the Company from time to time with the consent of the Agent, such consent not to be unreasonably withheld) and is subject to a Lockbox Agreement.
(mN) The Grantor Company shall notify (i) upon the Secured Party immediately if it knowsoccurrence of an Event of Default and (ii) within 10 days after the aggregate value of all Equipment consisting of motor vehicles, or has reason to knowtrucks and trailers owned by the Company and its Subsidiaries shall exceed $150,000, that any application or registration relating to any Copyright, Patent or Trademark which is material deliver to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover Agent any and all damages certificates of title, applications for such infringement, misappropriation title or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice similar evidence of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts ownership of such attorney being hereby ratified Equipment and confirmed; shall cause the Agent to be named as lienholder on any such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in fullcertificate of title or other evidence of ownership.
Appears in 1 contract
Further Assurances Covenants. (aA) The Grantor Debtor will not change (i) its name, identity or corporate structure in any manner or change the location of (i) its chief executive office or chief place of business, or (ii) the locations where it keeps or holds any Collateral from the applicable location described in the Perfection Certificate unless it shall have given the Secured Party not less than 10 days' Collateral Agent thirty (30) days prior notice thereof thereof, shall have taken all such action as the Collateral Agent shall reasonably deem necessary to maintain at all times the perfection of the Security Interests in the Collateral granted hereunder and shall have delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(I); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l). The Grantor shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bB) The Grantor Debtor will, from time to time, at its expense, execute, deliver, file and record any statement, notice, assignment, instrument, document, agreement or other paper and take any other action action, (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and UCC, or any filings with such document or action in respect of the United States Patent and Trademark Office or the United States Copyright OfficeAssignment of Claims Act) that from time to time may be necessary or desirable, or that the Secured Party Collateral Agent may reasonably request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Collateral Agent and the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Collateral Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Debtor hereby authorizes the Secured Party Collateral Agent to execute and file financing statements or continuation statements without the GrantorDebtor's signature appearing thereon. The Grantor Debtor agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Debtor shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(cC) If The Debtor will maintain its qualification to do business and all necessary licenses, permits and other governmental authorizations necessary in any Collateral is at any time jurisdiction to enable the Debtor to perform its obligations in the possession or control of any warehouseman, bailee or any respect of the Grantor's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby Receivables and to hold all such Collateral for administer, service and collect the Secured Party's account subject to the Secured Party's instructionsReceivables.
(dD) The Grantor shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records in such manner as the Secured Party may reasonably require in order to reflect the Security Interests.
(e) The Grantor Debtor will immediately deliver and pledge each Instrument to the Secured Party, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event of Default shall have occurred and be continuing, the Grantor may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document).
(f) The Grantor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (includingnot, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured PartyRequired Banks, change its credit or collection policies in a manner that is reasonably likely to impair the Grantor will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights collectibility of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit AgreementReceivables.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Further Assurances Covenants. (a) The Grantor Each Obligor will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) or change the location of its chief executive office or chief place of business from a the location described in its the Perfection Certificate to a location not described of such Obligor unless, in its Perfection Certificate unless it each case, such Obligor shall have given the Secured Party not less than Administrative Agent at least 30 days' prior notice thereof and delivered to the Banks an opinion of counsel with respect thereto at the cost and expense of such Obligor, in accordance with Section 4(l)form and substance reasonably satisfactory to the Administrative Agent, to the effect that, after giving effect to such change in name, identity, corporate structure or location, the Security Interests in the Collateral of such Obligor shall remain perfected; or (iii) provided that the locations where it keeps or holds provisions of the foregoing sentence shall not apply to any Collateral (change in the location of the chief executive office of any Obligor from any location in New York City to any other than Inventory location in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l)New York City. The Grantor Each Obligor shall not in any event change the location of any of its Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(b) The Grantor Each Obligor will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement agreement, 7 138 recording or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code UCC and any additional of substitute filings with the United States Patent and Trademark Office or the United States Copyright OfficePTO) that from time to time may be necessary or desirable, or that the Secured Party Administrative Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Administrative Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the CollateralCollateral of such Obligor; PROVIDED provided that with respect to foreign intellectual property, the Grantor no Obligor shall only be required to take any such action as with respect to any Trademark that is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoingnot a Specified Trademark or any Trademark License that is not a Specified Trademark License. To the extent permitted by applicable law, the Grantor each Obligor hereby authorizes the Secured Party Administrative Agent to execute and file financing statements or continuation statements without the Grantorsuch Obligor's signature appearing thereon. The Grantor Each Obligor agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Each Obligor shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements or any filings with the PTO concerning the CollateralCollateral of such Obligor.
(c) If any Collateral is at any time in Within 30 Domestic Business Days after the possession or control end of each Fiscal Quarter, each Obligor shall provide to the Administrative Agent (i) copies of all applications for (1) the registration of any warehouseman, bailee Patent or any Patent License and (2) the registration of any Specified Trademark or Specified Trademark License filed by such Obligor during such Fiscal Quarter, (ii) a Patent Security Agreement executed by such Obligor with respect to each Patent or Patent License of such Obligor described in clause (1), (iii) a Trademark Security Agreement with respect to each Specified Trademark and Specified Trademark License described in clause (2) and (iv) a list of each Patent and Trademark that such Obligor has determined to abandon, or that such Obligor has determined not to maintain the registration of, during the immediately succeeding Fiscal Quarter, and a brief statement of the Grantor's agents reasons on the basis on which such Obligor has made such determination (it being understood that nothing in this clause (iv) shall be construed to limit or processors upon modify in any manner the occurrence obligations of such Obligor under subsection (d) below). Upon delivery of a Patent Security Agreement or a Trademark Security Agreement by any Obligor, Schedule 2A or 2B, as the case may be, shall be deemed to have been amended to reflect the Patents and during Patent Licenses or Specified Trademarks and Specified Trademark Licences with respect to which such Patent Security Agreement or a Trademark Security Agreement, as the continuance of case may be, relates. If an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral Obligor has filed no applications for the Secured Party's account subject registration of any Patent, License, Specified Trademark or Specified Trademark License during any Fiscal Quarter, such Obligor shall, within 30 Domestic Business Days after the end of such Fiscal Quarter, provide a certificate to the Secured Party's instructions.Administrative Agent certifying the same. 8 139
(d) The Grantor shall keep full Each Obligor will take all steps which it reasonably determines are necessary and accurate books appropriate in the circumstances, including, without limitation, in any proceeding before the PTO, or any similar office or agency in any other country or any political subdivision thereof, to maintain and records relating pursue each application (and to obtain the relevant registration) and to maintain each registration of its material Patents and Specified Trademarks, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability except, in each case, for such applications or registrations which such other Obligor determines in good faith are no longer useful or material to the Collateral, and stamp or otherwise xxxx business of such books and records in such manner as the Secured Party may reasonably require in order to reflect the Security InterestsObligor.
(e) The Grantor will immediately deliver and pledge each Instrument to In the Secured Partyevent that any material Patent or Specified Trademark is infringed, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event of Default shall have occurred and be continuingmisappropriated or diluted by a third party, the Grantor may retain for collection in Obligor that holds such Patent or Trademark shall promptly notify the ordinary course any Instruments (Administrative Agent after it learns thereof, if such infringement, misappropriation or dilution could reasonably be expected to have a Material Adverse Effect, and take such other than checks and drafts constituting payments in respect of Accountsactions as such Obligor shall reasonably deem appropriate under the circumstances, or as the Administrative Agent shall reasonably request, to protect such Patent or Specified Trademark, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document)case may be.
(f) The Grantor Each Obligor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to notify the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee.
(h) The Grantor shall, (i) Administrative Agent as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of if such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured Party, the Grantor will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, Obligor knows that any application or registration relating to any Copyright, material Patent or Specified Trademark which is material to the Grantor's business may become abandoned or dedicated, dedicated or of any adverse determination or development (including, without limitation, including the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, PTO or any courtcourt or tribunal) regarding the Grantorsuch Obligor's ownership of any Copyright, material Patent or Trademark which is material to the Grantor's businessSpecified Trademark, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable .
(without accounting for any liens on the proceeds of any recovery)g) Each Obligor will, promptly xxx for infringementupon request, misappropriation or dilution provide to the Administrative Agent all information and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party evidence it may reasonably request concerning its Collateral to evidence enable the Security Interests in such Copyright, Patent or Trademark and Administrative Agent to enforce the goodwill and general intangibles provisions of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in fullthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Venator Group Inc)
Further Assurances Covenants. (aI) The Grantor Borrower will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating to any Collateral from a the applicable location described in its Perfection Certificate to a location not described in its the Perfection Certificate unless it shall have (a) given the Secured Party not less than Security Agent at least 30 days' prior notice thereof and (b) delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l4(J). The Grantor Borrower shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bII) The Grantor Borrower will not change its name, identity or corporate structure in any manner unless it shall have (i) given the Security Agent at least 30 days' prior notice thereof and (ii) delivered an opinion of counsel with respect thereto in accordance with Section 4(J).
(B) The Borrower will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that from time to time may be necessary or desirable, or that the Secured Party Security Agent may request, under the laws of the United States of America or Canada or any State, provincial or local jurisdiction located therein, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Security Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Borrower hereby authorizes the Secured Party Security Agent to execute and file financing statements or continuation statements without the GrantorBorrower's signature appearing thereon. The Grantor Borrower agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Borrower shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(cC) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorBorrower's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyagents, the Grantor Borrower shall notify such warehouseman, bailee, agent or processor agents of the Security Interests created hereby and to hold all such Collateral for the Secured PartySecurity Agent's account subject to the Secured PartySecurity Agent's instructions.
(dD) The Grantor Borrower shall keep full and accurate books and records consistent with GAAP relating to the Collateral, and stamp or otherwise xxxx mark such books and records in such manner as the Secured Party Security Xxxxt or the Required Banks may reasonably require in order to reflect the Security Interests.
(eE) The Grantor Borrower will immediately deliver and pledge each Instrument to the Secured PartySecurity Agent, appropriately endorsed to the Secured Party, PROVIDED Security Agent; provided that so long as no Event of Default shall have occurred and be continuing, the Grantor Borrower may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of AccountsReceivables, as to which the provisions of Section 4(f5(B) shall apply) received by it in the ordinary course of business and the Secured Party Security Agent shall, promptly upon request of the GrantorBorrower, make appropriate arrangements for making any other Instrument pledged by the Grantor Borrower available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartySecurity Agent, against trust receipt or like document).
(fF) The Grantor Borrower shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account Receivable and Instrument (including, without limitation, Accounts Receivables which are delinquent, such Accounts Receivables to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Accountthe related Receivable. Subject to the rights of the Security Agent and the other Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, the Grantor Borrower may allow in the ordinary course of business as adjustments to amounts owing under its Accounts Receivables or Instruments (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Borrower finds appropriate in accordance with sound business judgment and (2ii) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the GrantorBorrower's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' attorney's fees) of collection, whether incurred by the Grantor Borrower or the Secured PartySecurity Agent, shall be borne by the GrantorBorrower.
(gG) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Banks through the Security Agent, the Grantor Borrower will promptly notify (and the Grantor Borrower hereby authorizes the Secured Party Security Agent so to notify) each account debtor in respect of any Account Receivable or Instrument that such Collateral has been assigned to the Secured Party Security Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Security Agent or its designee.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(iH) Without the prior written consent of the Secured PartySecurity Agent, the Grantor Borrower will not (a) sell, lease, exchange, assign or otherwise dispose ofof any Collateral or (b) create, incur or grant suffer to exist any option Lien with respect to, to any Collateral except that, subject (other than the Security Interests) or with respect to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease any inventories now owned or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted hereafter acquired by the terms Borrower (other than Liens described in clause (g) of Section 5.09 of the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party so long as such Liens have not given rise to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies).
(kI) The Grantor Borrower will, promptly upon request, provide to the Secured Party Security Agent all information and evidence it may reasonably request concerning the Collateral Collateral, and in particular concerning the Receivables, to enable the Secured Party Security Agent to enforce the provisions of this Agreement. The Borrower will permit the representatives of the Security Agent to call at its places of business from time to time and at any reasonable time during business hours (such visits to be conducted so as not to disrupt the business and affairs of the Borrower), and, without hindrance or delay but with prior notice, to inspect the Collateral and, no more than once each Fiscal Year unless an Event of Default has occurred and is continuing, to inspect, audit, check and make extracts from and copies of the books, records, journals, orders, receipts and correspondence which relate to the Collateral at the Borrower's cost and expense without undue interference with the Borrower's operations. The Borrower will provide each Secured Party with such information as to the Collateral as such Secured Party may reasonably request.
(lJ) In Not more than six months nor less than 30 days prior to (i) each date on which the event the Grantor Borrower proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii4(A)(I) or 4(a)(iii), at the request (II) and (ii) each anniversary of the Secured Partydate of the first Borrowing during the term of the Credit Agreement, the Grantor Borrower shall, at the Grantor's its cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent Secured Parties an opinion of counsel, counsel satisfactory to the Administrative Agent, Security Agent substantially in the form of Exhibit F Annex B hereto or otherwise in such other form and substance, and covering such matters relating to such actions, as is reasonably satisfactory acceptable to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knowsParties and their counsel, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned effect that all financing statements and amendments or dedicatedsupplements thereto, continuation statements and other documents required to be recorded or filed in order to perfect and protect the Security Interests, for a period, specified in such opinion, continuing until a date not earlier than eighteen months from the date of any adverse determination or development (includingsuch opinion, without limitation, against all creditors of and purchasers from the institution of, or any Borrower have been filed in each filing office necessary for such determination or development in, any proceeding in purpose. Each such opinion shall be accompanied by a certificate of the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material Borrower to the Grantor's businesseffect that all filing fees and taxes, its right to register the sameif any, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted payable in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for connection with such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are filings have been paid in full.
Appears in 1 contract
Samples: Security Agreement (Iomega Corp)
Further Assurances Covenants. (aA) The Grantor Company will not change (i) its name, identity or corporate structure form of organization in any manner unless it shall have given the Secured Party not less than 10 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(L); (ii) . The Company will not change the location of (i) its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating thereto from a the applicable location described in its Perfection Certificate to a location not described in its the Perfection Certificate unless it shall have given the Secured Party not less than 30 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l4(L). The Grantor Company shall not in any event change the location of any Collateral without the prior written consent of the Agent if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bB) The Grantor Company shall not in any event change the location of any Collateral without the prior written consent of the Agent if such change would cause the Security Interests to lapse or cease to be perfected.
(C) To the extent permitted under applicable law, the Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, including any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that from time to time may be necessary or desirable, or that the Secured Party Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Agent, and appoints the Agent as its true and lawful attorney (with full power of substitution, in the name of the Company, the Secured Party Parties or otherwise, for the sole use and benefit of the Secured Parties), to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(cD) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyprocessors, the Grantor Company shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyAgent's account subject to the Secured PartyAgent's instructions.
(dE) The Grantor Company shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such mark xxxh books and records in such manner as the Secured Party Agent may reasonably require in order to reflect the Security Interests.
(eF) The Grantor Company will immediately deliver and pledge each Instrument to the Secured PartyAgent, appropriately endorsed to the Secured PartyAgent, PROVIDED provided that so long as no Event of Default shall have occurred and be continuing, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f5(B) shall apply) received by it in the ordinary course of business and the Secured Party Agent shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartyAgent, against trust receipt or like document).
(fG) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, including Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection proceduresprocedures and the Company's customary practices) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party Parties hereunder if upon the occurrence and during the continuance of an Event of Default shall have occurred and be continuingDefault, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound business judgment unless such extension, renewal or settlement results in causing such Account to not be an Eligible Receivable and thereby causes the aggregate unpaid balance of Working Capital Loans to exceed the Borrowing Base and (2ii) a refund or credit due as a result of returned or damaged merchandisemerchandise or as a discount for prompt payment, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' including attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyAgent, shall be borne by the GrantorCompany.
(gH) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Lenders through the Agent, to the Grantor extent permitted by applicable law the Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Agent so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Agent or its designee.
(hI) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and Company shall not permit any such items of Equipment to become a fixture to real estate (unless the Agent has a first priority Lien thereon) or an accession to other personal property.
(iJ) Without the prior written consent of the Secured PartyAgent and except in the ordinary course of business, the Grantor Company will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except thatexcept, subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, as permitted under the Grantor may (x) sellCredit Agreement including Section 8.06, lease or exchange Inventory and surplus or worn-out Equipment whereupon, in the ordinary course case of business and such a sale or exchange, the Security Interests created hereby in such item (ybut not in any Proceeds arising from such sale or exchange) consummate shall cease immediately without any Asset Sale or other disposition permitted by further action on the terms part of the Credit AgreementAgent, except the execution of UCC-3 termination statements.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(kK) The Grantor Company will, promptly upon request, provide to the Secured Party Agent all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party Agent to enforce the provisions of this Agreement.
(lL) In Not more than six months nor less than 30 days prior to each date on which the event the Grantor Company proposes to take any action contemplated by Section 4(a)(i4(A), 4(a)(ii) or 4(a)(iii)the Company shall give notice to the Agent of such proposed action, and, at the request of the Secured Party, the Grantor shall, at the GrantorCompany's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent Secured Parties with such notice, an opinion of counsel, reasonably satisfactory to the Administrative Agent, Agent and substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory C to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knowseffect that all financing statements and amendments or supplements thereto, continuation statements and other documents required to be recorded or has reason filed in order to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent perfect and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests have been filed in each filing office necessary for such Copyrightpurpose and that all filing fees and taxes, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented therebyif any, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all payable in connection with such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are filings have been paid in full.
(M) The Company shall not open or maintain any bank account, money market account or investment account unless such account is first listed on Exhibit A (as updated by the F-8 91 Company from time to time with the consent of the Agent, such consent not to be unreasonably withheld) and is subject to a Lockbox Agreement.
(N) The Company shall (i) upon the occurrence of an Event of Default and (ii) within 10 days after the aggregate value of all Equipment consisting of motor vehicles, trucks and trailers owned by the Company and its Subsidiaries shall exceed $150,000, deliver to the Agent any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Agent to be named as lienholder on any such certificate of title or other evidence of ownership.
Appears in 1 contract
Further Assurances Covenants. Hancock covenants as follows:
(a) The Grantor It will not change (i) its namexxx xxxe, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); manner, (ii) the location of its chief executive office or chief place (iii) its jurisdiction of business from a location described organization in its Perfection Certificate to a location not described in its Perfection Certificate any manner unless it shall have given the Secured Party not less than 30 Creditor at least thirty (30) days' prior written notice thereof and delivered an opinion thereof, together with the delivery of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its revised Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l). The Grantor shall not in any event change the location of any Collateral if reflecting such change would cause the Security Interests in such Collateral to lapse or cease to be perfectedchange.
(b) The Grantor It will keep the Collateral at those locations listed on the Perfection Certificate and will not change such location to one not listed on the Perfection Certificate, without providing Creditor at least ten (10) days' prior written notice thereof, together with the delivery of a revised Perfection Certificate reflecting such change.
(c) It will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that from time to time may be necessary or desirable, or that the Secured Party Creditor may reasonably request, in order to create, preserve, perfect, confirm or validate the Security Interests in the Collateral or to enable the Secured Party (including the Administrative Agent as collateral assignee) Creditor to obtain the full benefits of this Agreementthe Collateral Security Documents, or to enable the Secured Party Creditor to exercise and enforce any of its rights, powers and remedies hereunder or thereunder with respect to any of the Collateral; PROVIDED . Notwithstanding Sections 4(a) and 4(b), to the extent any event or change in circumstances occurs that with respect to foreign intellectual propertywould make any statement made in, or Exhibit or Schedule to, the Grantor Perfection Certificate inaccurate or misleading in any material respect Hancock shall only be required deliver a revised Perfection Certificate to take Creditor witxxx xxxrty (30) days following such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoingevent or occurrence. To the extent permitted by applicable law, the Grantor hereby Hancock authorizes the Secured Party Creditor to execute and file such financing statements or statemexxx xx continuation statements without the GrantorHancock's signature appearing thereon. The Grantor Hancock agrees that a carbon, photographicpxxxxxxxxxic, photostatic or other reproduction reproxxxxxxx of this Security Agreement or of a financing statement is sufficient as a financing statement. The Grantor Hancock shall pay the costs of, or incidental to, any recording or filing of filxxx xx any such financing or continuation statements concerning in which it is named as the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the Grantor's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured Party's account subject to the Secured Party's instructionsdebtor.
(d) The Grantor It shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx mark such books and records in such manner as the Secured Party Creditor may reasonably require xxxxest in order to reflect the Security Interests.
(e) The Grantor will immediately deliver and pledge each Instrument to the Secured Party, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event of Default shall have occurred and be continuing, the Grantor may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document).
(f) The Grantor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured Party, the Grantor Hancock will not sell, lease, exchange, assign or otherwise dispose of, or grant xx xxant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Collateral; provided, however, that so long as no Event of Default shall have has occurred and is continuing or would be continuingcaused thereby, the Grantor Hancock may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment otherwise dispose of (i) obsolete assets coxxxxxxxg part of the Collateral in the ordinary course of business consistent with past practices, (ii) other assets comprising part of the Collateral described in Section 2(a)(i), and (yiii) consummate other assets comprising part of the Collateral described in Section 2(a)(ii), subject in the case of clauses (ii) and (iii), to the following sentence. Hancock agrees that in the event of any Asset Sale or sale, lease, exchange, assignmxxx xx other disposition permitted by the terms this Section 4(e) of (A) assets comprising part of the Collateral described in Section 2(a)(i) which, individually or in the aggregate have a fair market value in excess of One Million United States Dollars (US$1,000,000), or (B) assets comprising part of the Collateral described in Section 2(a)(ii) which, individually or in the aggregate have a fair market value in excess of Five Million United States Dollars (US$5,000,000), any proceeds with respect thereto in excess of the respective amount set forth in clause (A) or (B), as the case may be, shall be either (x) reinvested in Collateral within one (1) year after the date of such sale, lease, exchange, assignment or other disposition or (y) used to repay to GAC or Glencore, as the case may be, amounts outstanding under the Hawesville Purchase Note and/or the Letter of Credit Reimbursement Note, as the case may be, subject to applicable restrictions contained in the Indenture or the Revolving Credit Agreement, if any; and until such reinvestment or repayment shall have occurred, such excess proceeds shall be deemed to be Collateral hereunder, and on or prior to such sale, lease, exchange, assignment or other disposition Hancock shall have taken such steps as Glencore deems necessary or appxxxxxxxe to perfect a first priority security interest in such excess proceeds.
(jf) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor Hancock will, promptly upon request, provide to the Secured Party Creditor all information and informatixx xxx evidence it may reasonably request concerning the Collateral to enable the Secured Party Creditor to enforce the provisions of this Agreementthe Collateral Security Documents.
(lg) In Hancock shall maintain insurance on the event Collateral against loss or damxxx xx the Grantor proposes to take any action contemplated kinds customarily insured against by Section 4(a)(i)corporations similarly situated and owning like properties, 4(a)(ii) or 4(a)(iii)in such amounts, at the request of the Secured Party, the Grantor shall, at the Grantor's cost with such deductibles and expense, and prior to taking any by such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially methods as are customary for corporations similarly situated in the form of Exhibit F or otherwise industry in form and substance, and covering which Hancock conducts its business. Hancock shall keep such matters relating policies currenx xxx xhall make all payments rxxxxxxx thereunder on a timely basis. Hancock shall name Creditor as loss payee with respect to such actions, reasonably satisfactory to the Administrative Agentcoveragx xxx xhall supply Creditor with a certificate of insurance from its carrier with respect thereto.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Further Assurances Covenants. The Company covenants as follows:
(a) The Grantor Company will not change (i) the locations of its nameprincipal place of business or its chief executive office, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or federal tax identification number, (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any related records relating thereto from a location the applicable locations described in the Perfection Certificate, or (iv) its Perfection Certificate name, identity or corporate structure in any manner, without giving the Bank 30 days prior written notice. In the event of any such change, the Company shall, at its cost and expense, cooperate with the Bank and cause to a location not described be filed or recorded additional financing statements, amendments or supplements to existing financing statements, continuation statements or other documents required to be recorded or filed in its Perfection Certificate unless it gives order to perfect and protect the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l)Security Interests. The Grantor Company shall not not, in any event event, make any such change the location of any Collateral if such change would cause the Security Interests in such any Collateral to lapse or cease to be perfected.
(b) The Grantor Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that the Bank may from time to time may reasonably determine to be necessary or desirable, or that the Secured Party may request, desirable in order to create, preserve, upgrade in rank (to the extent required hereby), perfect, confirm or validate the Security Interests or to enable the Secured Party Bank to (including the Administrative Agent as collateral assigneei) to obtain the full benefits of this Agreement, or to enable the Secured Party (ii) to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property. At the Bank's request, the Grantor shall only be required Company will use reasonable efforts to take such action as obtain the consent of any Person that is reasonably requested necessary or desirable to effect the pledge hereunder of any right, title, claims and benefits now owned or hereafter acquired by the Secured Party, taking into account the value of the foreign intellectual property Company in and the expense associated with complying with the foregoingto any General Intangible. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Secured Party Bank to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic photographic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors possesses or controls any Collateral, the Company shall, upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured PartyBank, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyBank's account subject to the Secured PartyBank's instructions.
(d) The Grantor Company shall keep full complete and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records them in such manner as the Secured Party Bank may reasonably require request in order to reflect the Security Interests.
(e) The Grantor Company will immediately promptly deliver and pledge each Instrument to the Secured PartyBank, appropriately endorsed to the Secured PartyBank without recourse, PROVIDED provided that so long as no Event of Default shall have occurred and be continuingcontinuing it, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it receives in the ordinary course of business and the Secured Party Bank shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to by the Secured PartyBank, against trust receipt or like document).
(f) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures and the Company's standard procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if , except that, unless an Event of Default shall have has occurred and be continuingis continuing and the Bank is exercising its rights hereunder to collect Accounts, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound prudent business judgment and (2ii) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' reasonable attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyBank, shall be borne by the GrantorCompany.
(g) Upon the occurrence and during the continuance of any Event of Default, upon the request of the Secured PartyBank, the Grantor Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Bank so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunderBank, and that any payments due or to become due in respect of such Collateral are to be made directly to the Bank or any designee of the Bank. Following such request of the Bank, the Company shall hold all proceeds from collection of Accounts as trustee for the Bank (without commingling the same with other funds of the Company) and shall turn the same over to the Bank immediately upon receipt in the form received (duly endorsed by the Company to the Bank, if required). The Bank shall apply the proceeds of such collections it receives to the Secured Party Obligations in accordance with SECTION 8 of this Agreement. The application of the proceeds of such collections shall be conditional upon the final payment in cash of the items so collected. If any item is not so paid or its designeethe Bank is required for any reason to return any payment made, the Bank may reverse any credit given in respect of such item.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured PartyBank, the Grantor Company will not (a) sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to in accordance with the rights exceptions set forth in Section 7.1 of the Secured Party hereunder Loan Agreement as if an Event of Default shall have occurred they applied to Company; or (b) create, incur or suffer to exist any Lien with respect to any Collateral, except for Permitted Liens and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit AgreementSecurity Interests.
(ji) Within 10 days following The Company will maintain, with financially sound and reputable companies, insurance policies in accordance with the execution of this Agreementstandards set forth in Section 6.6 in the Loan Agreement as if they applied to the Company (A) insuring all Inventory and Equipment against loss by fire, explosion, theft and other casualties reasonably satisfactory to the Grantor will cause Bank and (B) insuring the Secured Party to be named as an insured party Company and loss payee on each insurance policy covering risks the Bank against liability for personal injury and property damage relating to any of its Inventory and Equipment. The Grantor will deliver , such policies to be in such form and amounts and having such coverage as is reasonably satisfactory to the Secured PartyBank, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and losses payable to the Secured Party and Bank as sole loss payee. All such insurance shall (A) provide that no termination, cancellation, termination material reduction in amount or material modification change in coverage thereof shall be effective until at least 30 days after receipt by the Secured Party Bank of written notice thereof. , (B) in the case of the policies referenced in clause (ii) above, name the Bank as additional insured and (C) be otherwise reasonably satisfactory to the Bank.
(j) The Grantor hereby appoints Company will keep each item of Equipment in good order and repair and will not use the Secured Party as its attorney-in-fact to make proof same in violation of loss, claim for law or any policy of insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policiesthereon.
(k) The Grantor Company will, promptly upon request, provide to the Secured Party Bank all information and evidence it may reasonably request concerning the Collateral (including without limitation, the names, addresses, face value, and date of invoices for each debtor obligated on each Account) to enable the Secured Party Bank to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Security Agreement (Lionbridge Technologies Inc /De/)
Further Assurances Covenants. (a) The Grantor Company will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than Collateral Agent at least 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); . The Company will not change the location of (i) its chief executive office or chief place of business or (iiiii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a the applicable location described in its Perfection Certificate to a location not described in its the Perfection Certificate unless it gives shall have given the Secured Party Collateral Agent at least 30 days' prior notice within 10 days thereof and delivers delivered an opinion of counsel with respect thereto in accordance with Section 4(l). The Grantor Company shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(b) The Grantor Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action action, (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that from time to time may be necessary or desirable, or that the Secured Party Collateral Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Collateral Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Secured Party Collateral Agent to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyprocessors, the Grantor Company shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyCollateral Agent's account subject to the Secured PartyCollateral Agent's instructions.
(d) The Grantor Company shall keep full and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such mark xxxh books and records in such manner as the Secured Party Required Lenders may reasonably require in order to reflect the Security Interests.
(e) The Grantor Company will immediately deliver and pledge each Instrument to the Secured PartyCollateral Agent, appropriately endorsed to the Secured PartyCollateral Agent, PROVIDED provided that so long as no Event of Default (as defined in the Bridge Securities) shall have occurred and be continuing, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f5(b) shall apply) received by it in the ordinary course of business and the Secured Party Collateral Agent shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartyCollateral Agent, against trust receipt or like document).
(f) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound business judgment and (2ii) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyCollateral Agent, shall be borne by the GrantorCompany.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Purchasers through the Collateral Agent, the Grantor Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Collateral Agent so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party Collateral Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Collateral Agent or its designee.
(h) The Grantor Company shall, (i) as soon as practicable after on or prior to the date hereofof the first Borrowing, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1ii) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000Equipment, deliver to the Secured Party Collateral Agent any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party Collateral Agent to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor Company shall promptly inform the Secured Party Collateral Agent of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured PartyRequired Lenders, the Grantor Company will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, the Grantor Company may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and business, whereupon, in the case of such a sale or exchange, the Security Interests created hereby in such item (ybut not in any Proceeds arising from such sale or exchange) consummate shall cease immediately without any Asset Sale or other disposition permitted by further action on the terms part of the Credit AgreementCollateral Agent.
(j) Within 10 days following Prior to the execution of this Closing Date under the Securities Purchase Agreement, the Grantor Company will cause the Secured Party Collateral Agent to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor Company will deliver to the Secured PartyCollateral Agent, upon request of the Secured PartyCollateral Agent, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the LendersParties, provide for coverage to the Secured Party Collateral Agent regardless of the any breach by the Grantor Company of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 50,000 per claim shall be adjusted with and payable to the Secured Party Collateral Agent and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party Collateral Agent of notice thereof. The Grantor Company hereby appoints the Secured Party Collateral Agent as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor Company will, promptly upon request, provide to the Secured Party Collateral Agent all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party Collateral Agent to enforce the provisions of this Agreement.
(l) In Not more than six months nor less than 30 days prior to each date on which the event the Grantor Company proposes to take any action contemplated by Section 4(a)(i4(a), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor Company shall, at the Grantor's its cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent Purchasers an opinion of counsel, satisfactory to the Administrative Collateral Agent, substantially in the form of Exhibit F or otherwise in form and substanceB hereto, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agenteffect that all financing statements and amendments or supplements thereto, continuation statements and other documents required to be recorded or filed in order to perfect and protect the Security Interests for a period, specified in such opinion, continuing until a date not earlier than eighteen months from the date of such opinion, against all creditors of and purchasers from the Company have been filed in each filing office necessary for such purpose and that all filing fees and taxes, if any, payable in connection with such filings have been paid in full.
(m) The Grantor Issuer agrees to notify the Collateral Agent immediately upon filing any application for, or otherwise acquiring ownership of or a registration relating to, any copyright, Patent or Trademark. At any time and from time to time thereafter, the Collateral Agent may (and shall upon instruction from the Required Lenders) require either Company to, at its expense and upon the request of the Collateral Collateral Agent, file (as appropriate) the Patent Security Agreement and the Trademark Security Agreement with the United States Patent and Trademark Office and a copyright security agreement (in form and substance satisfactory to the Collateral Agent) with the United States Copyright Office, and take such other actions as may be necessary or reasonably desirable, or that the Collateral Agent may reasonably request, in order to create and perfect the security interests in such Patents, Trademarks or copyrights, as the case may be. The Issuer shall notify the Secured Party Collateral Agent immediately if it knows, or has reason to know, knows that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicateddedicated to the public (other than applications or registrations (x) with respect to any such Patents or Trademarks that are no longer used or useful in the business of the Issuer or whose minimal value does not reasonably justify the cost of maintaining such registration or application, or (y) that have been refused by the applicable patent or trademark registry) or of any adverse determination or development (including, without limitation, including the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the GrantorIssuer's ownership of any Copyright, Patent or Trademark which is material to the Grantor's businessTrademark, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, right to any Patent, Patent License, Trademark or Trademark License of either Company is infringed, misappropriated or diluted in any material respect by a third party, the Grantor Issuer shall notify the Secured Party Collateral Agent promptly after it learns thereof and shall, unless the Grantor Issuer shall reasonably determine that any of the following actions such action would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery)negligible economic value, promptly sue xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor Issuer shall reasonably deem appropriate under the circumstances to protect such CopyrightPatent, Patent License, Trademark or TrademarkTrademark License. The Grantor will give the Secured Party quarterly notice of its filing of In no event shall either Company, either by itself or through any agent, employee or licensee, file an application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency of the United States, any State thereof, the District of Columbia or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agentunless not less than 10 days prior thereto it informs the Collateral Agent, employee or licensee. The Grantor will execute and, upon request of the Collateral Agent, executes and deliver delivers any and all agreements, instruments, documents and papers the Secured Party Collateral Agent may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor Issuer relating thereto or represented thereby, and the Grantor Issuer hereby constitutes the Secured Party Collateral Agent its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Partypurposes, all acts of such attorney being hereby ratified and confirmed; such power, power being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
(n) From time to time upon request by the Collateral Agent, the Company shall, at its cost and expense, cause to be delivered to the Purchasers an opinion of counsel satisfactory to the Collateral Agent as to such matters relating to the transactions contemplated hereby as the Required Purchasers may reasonably request.
Appears in 1 contract
Further Assurances Covenants. The Company covenants as follows:
(a) The Grantor Company will not change (i) the locations of its nameprincipal place of business or its chief executive office, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or federal tax identification number, (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any related records relating thereto from a location the applicable locations described in the Perfection Certificate, or (iv) its Perfection Certificate name, identity or corporate structure in any manner, without giving the Bank 30 days prior written notice. In the event of any such change, the Company shall, at its cost and expense, cooperate with the Bank and cause to a location not described be filed or recorded additional financing statements, amendments or supplements to existing financing statements, continuation statements or other documents required to be recorded or filed in its Perfection Certificate unless it gives order to perfect and protect the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l)Security Interests. The Grantor Company shall not not, in any event event, make any such change the location of any Collateral if such change would cause the Security Interests in such any Collateral to lapse or cease to be perfected.
(b) The Grantor Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that the Bank may from time to time may reasonably determine to be necessary or desirable, or that the Secured Party may request, desirable in order to create, preserve, upgrade in rank (to the extent required hereby), perfect, confirm or validate the Security Interests or to enable the Secured Party Bank to (including the Administrative Agent as collateral assigneei) to obtain the full benefits of this Agreement, or to enable the Secured Party (ii) to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property. At the Bank's request, the Grantor shall only be required Company will use reasonable efforts to take such action as obtain the consent of any Person that is reasonably requested necessary or desirable to effect the pledge hereunder of any right, title, claims and benefits now owned or hereafter acquired by the Secured Party, taking into account the value of the foreign intellectual property Company in and the expense associated with complying with the foregoingto any General Intangible. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Secured Party Bank to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic photographic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors possesses or controls any Collateral, the Company shall, upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured PartyBank, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyBank's account subject to the Secured PartyBank's instructions.
(d) The Grantor Company shall keep full complete and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records them in such manner as the Secured Party Bank may reasonably require request in order to reflect the Security Interests.
(e) The Grantor Company will immediately promptly deliver and pledge each Instrument to the Secured PartyBank, appropriately endorsed to the Secured PartyBank without recourse, PROVIDED provided that so long as no Event of Default shall have occurred and be continuingcontinuing it, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it receives in the ordinary course of business and the Secured Party Bank shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to by the Secured PartyBank, against trust receipt or like document).
(f) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures and the Company's standard procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if , except that, unless an Event of Default shall have has occurred and be continuingis continuing and the Bank is exercising its rights hereunder to collect Accounts, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound prudent business judgment and (2ii) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyBank, shall be borne by the GrantorCompany.
(g) Upon the occurrence and during the continuance of any Event of Default, upon the request of the Secured PartyBank, the Grantor Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Bank so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunderBank, and that any payments due or to become due in respect of such Collateral are to be made directly to the Bank or any designee of the Bank. Following such request of the Bank, the Company shall hold all proceeds from collection of Accounts as trustee for the Bank (without commingling the same with other funds of the Company) and shall turn the same over to the Bank immediately upon receipt in the form received (duly endorsed by the Company to the Bank, if required). The Bank shall apply the proceeds of such collections it receives to the Secured Party Obligations in accordance with SECTION 8 of this Agreement. The application of the proceeds of such collections shall be conditional upon the final payment in cash of the items so collected. If any item is not so paid or its designeethe Bank is required for any reason to return any payment made, the Bank may reverse any credit given in respect of such item.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured PartyBank, the Grantor Company will not (a) sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange other than Inventory and surplus obsolete or worn-out Equipment property and equipment and, in the ordinary course case of business any such permitted sale or exchange, the Security Interests created hereby in such item (but not in any Proceeds arising from such sale or exchange) shall cease immediately without any further action on the part of the Bank; or (b) create, incur or suffer to exist any Lien with respect to any Collateral, except for Permitted Liens and the Security Interests;
(i) The Company will maintain, with financially sound and reputable companies, insurance policies (i) insuring all Inventory and Equipment against loss by fire, explosion, theft and other casualties reasonably satisfactory to the Bank and (yii) consummate any Asset Sale or other disposition permitted by insuring the terms of Company and the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party Bank against liability for personal injury and loss payee on each insurance policy covering risks property damage relating to any of its Inventory and Equipment. The Grantor will deliver , such policies to be in such form and amounts and having such coverage as is reasonably satisfactory to the Secured PartyBank, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and losses payable to the Secured Party and Bank as sole loss payee. All such insurance shall (A) provide that no termination, cancellation, termination material reduction in amount or material modification change in coverage thereof shall be effective until at least 30 days after receipt by the Secured Party Bank of written notice thereof. , (B) in the case of the policies referenced in clause (ii) above, name the Bank as additional insured and (C) be otherwise reasonably satisfactory to the Bank.
(j) The Grantor hereby appoints Company will keep each item of Equipment in good order and repair and will not use the Secured Party as its attorney-in-fact to make proof same in violation of loss, claim for law or any policy of insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policiesthereon.
(k) The Grantor Company will, promptly upon request, provide to the Secured Party Bank all information and evidence it may reasonably request concerning the Collateral (including without limitation, the names, addresses, face value, and date of invoices for each debtor obligated on each Account) to enable the Secured Party Bank to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Security Agreement (Lionbridge Technologies Inc /De/)
Further Assurances Covenants. (aA) The Grantor None of the Companies will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(K); (ii) . None of the Companies will change the location of (i) its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating thereto from a the applicable location described in its the Perfection Certificate to a location not described in its Perfection Certificate delivered by such Company unless it shall have given the Secured Party not less than 30 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l4(K). The Grantor None of the Companies shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bB) The Grantor Each Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, including any filings of financing or continuation statements under the Uniform Commercial Code UCC and any filings with the registration in the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, of any unregistered Patent, Trademark or Copyright that is material to the business of such Company, now owned or later acquired by such Company) that from time to time may be necessary or desirable, or that the Secured Party Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor each Company hereby authorizes the Secured Party to execute and file financing statements or continuation statements without the Grantor's signature appearing thereon. The Grantor agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the Grantor's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Party, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured Party's account subject to the Secured Party's instructions.
(d) The Grantor shall keep full and accurate books and records relating to the CollateralAgent, and stamp or otherwise xxxx such books appoints the Agent as its true and records in such manner as the Secured Party may reasonably require in order to reflect the Security Interests.
lawful attorney (e) The Grantor will immediately deliver and pledge each Instrument to the Secured Party, appropriately endorsed to the Secured Party, PROVIDED that so long as no Event with full power of Default shall have occurred and be continuing, the Grantor may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it in the ordinary course of business and the Secured Party shall, promptly upon request of the Grantor, make appropriate arrangements for making any other Instrument pledged by the Grantor available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured Party, against trust receipt or like document).
(f) The Grantor shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor finds appropriate in accordance with sound business judgment and (2) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the Grantor's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' fees) of collection, whether incurred by the Grantor or the Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured Party, the Grantor will promptly notify (and the Grantor hereby authorizes the Secured Party so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party or its designee.
(h) The Grantor shall, (i) as soon as practicable after the date hereofsubstitution, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership name of such goodsCompany, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of titleParties or otherwise, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured Party, the Grantor will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange Inventory and surplus or worn-out Equipment in the ordinary course of business and (y) consummate any Asset Sale or other disposition permitted by the terms of the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor will, promptly upon request, provide to the Secured Party all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.for
Appears in 1 contract
Samples: Credit Agreement (Lets Talk Cellular & Wireless Inc)
Further Assurances Covenants. The Company covenants as follows:
(a) The Grantor Company will not change (i) the locations of its nameprincipal place of business or its chief executive office, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); (ii) the location of its chief executive office or chief place of business from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it shall have given the Secured Party not less than 30 days' prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or federal tax identification number, (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any related records relating thereto from a location the applicable locations described in the Perfection Certificate, or (iv) its Perfection Certificate name, identity or corporate structure in any manner, without giving the Bank 30 days prior written notice. In the event of any such change, the Company shall, at its cost and expense, cooperate with the Bank and cause to a location not described be filed or recorded additional financing statements, amendments or supplements to existing financing statements, continuation statements or other documents required to be recorded or filed in its Perfection Certificate unless it gives order to perfect and protect the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l)Security Interests. The Grantor Company shall not not, in any event event, make any such change the location of any Collateral if such change would cause the Security Interests in such any Collateral to lapse or cease to be perfected.
(b) The Grantor Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, any filings of financing or continuation statements under the Uniform Commercial Code and any filings with the United States Patent and Trademark Office or the United States Copyright OfficeUCC) that the Bank may from time to time may reasonably determine to be necessary or desirable, or that the Secured Party may request, desirable in order to create, preserve, upgrade in rank (to the extent required hereby), perfect, confirm or validate the Security Interests or to enable the Secured Party Bank to (including the Administrative Agent as collateral assigneei) to obtain the full benefits of this Agreement, or to enable the Secured Party (ii) to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property. At the Bank's request, the Grantor shall only be required Company will use reasonable efforts to take such action as obtain the consent of any Person that is reasonably requested necessary or desirable to effect the pledge hereunder of any right, title, claims and benefits now owned or hereafter acquired by the Secured Party, taking into account the value of the foreign intellectual property Company in and the expense associated with complying with the foregoingto any General Intangible. To the extent permitted by applicable law, the Grantor Company hereby authorizes the Secured Party Bank to execute and file financing statements or continuation statements without the GrantorCompany's signature appearing thereon. The Grantor Company agrees that a carbon, photographic, photostatic photographic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors possesses or controls any Collateral, the Company shall, upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured PartyBank, the Grantor shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyBank's account subject to the Secured PartyBank's instructions.
(d) The Grantor Company shall keep full complete and accurate books and records relating to the Collateral, and stamp or otherwise xxxx such books and records them in such manner as the Secured Party Bank may reasonably require request in order to reflect the Security Interests.
(e) The Grantor Company will immediately promptly deliver and pledge each Instrument to the Secured PartyBank, appropriately endorsed to the Secured PartyBank without recourse, PROVIDED provided that so long as no Event of Default shall have occurred and be continuingcontinuing it, the Grantor Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f) shall apply) received by it receives in the ordinary course of business and the Secured Party Bank shall, promptly upon request of the GrantorCompany, make appropriate arrangements for making any other Instrument pledged by the Grantor Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to by the Secured PartyBank, against trust receipt or like document).
(f) The Grantor Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures and the Company's standard procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party hereunder if , except that, unless an Event of Default shall have has occurred and be continuingis continuing and the Bank is exercising its rights hereunder to collect Accounts, the Grantor Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor Company finds appropriate in accordance with sound prudent business judgment and (2ii) a refund or credit due as a result of returned or damaged merchandise, all in accordance with the GrantorCompany's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' attorney's fees) of collection, whether incurred by the Grantor Company or the Secured PartyBank, shall be borne by the GrantorCompany.
(g) Upon the occurrence and during the continuance of any Event of Default, upon the request of the Secured PartyBank, the Grantor Company will promptly notify (and the Grantor Company hereby authorizes the Secured Party Bank so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party hereunderBank, and that any payments due or to become due in respect of such Collateral are to be made directly to the Bank or any designee of the Bank. Following such request of the Bank, the Company shall hold all proceeds from collection of Accounts as trustee for the Bank (without commingling the same with other funds of the Company) and shall turn the same over to the Bank immediately upon receipt in the form received (duly endorsed by the Company to the Bank, if required). The Bank shall apply the proceeds of such collections it receives to the Secured Party Obligations in accordance with SECTION 8 of this Agreement. The application of the proceeds of such collections shall be conditional upon the final payment in cash of the items so collected. If any item is not so paid or its designeethe Bank is required for any reason to return any payment made, the Bank may reverse any credit given in respect of such item.
(h) The Grantor shall, (i) as soon as practicable after the date hereof, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000, deliver to the Secured Party any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor shall promptly inform the Secured Party of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate or an accession to other personal property.
(i) Without the prior written consent of the Secured PartyBank, the Grantor Company will not (a) sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except that, subject to the rights of the Secured Party hereunder if an Event of Default shall have occurred and be continuing, the Grantor may (x) sell, lease or exchange other than Inventory and surplus obsolete or worn-out Equipment property and equipment and, in the ordinary course case of business any such permitted sale or exchange, the Security Interests created hereby in such item (but not in any Proceeds arising from such sale or exchange) shall cease immediately without any further action on the part of the Bank; or (b) create, incur or suffer to exist any Lien with respect to any Collateral, except for Permitted Liens and the Security Interests; provided, however, the Bank hereby agrees (i) to permit the Company to sell in one or more transactions certain of its assets, including furnishings and telephone and computer equipment, worth an aggregate of up to $250,000 and (yii) consummate any Asset Sale or other to make all such filings as are necessary to amend the UCC financing statements contemplated herein to reflect the disposition permitted by of assets pursuant to the terms of the Credit Agreementpreceding clause (i).
(ji) Within 10 days following The Company will maintain, with financially sound and reputable companies, insurance policies (i) insuring all Inventory and Equipment against loss by fire, explosion, theft and other casualties reasonably satisfactory to the execution of this Agreement, Bank and (ii) insuring the Grantor will cause Company and the Secured Party to be named as an insured party Bank against liability for personal injury and loss payee on each insurance policy covering risks property damage relating to any of its Inventory and Equipment. The Grantor will deliver , such policies to be in such form and amounts and having such coverage as is reasonably satisfactory to the Secured PartyBank, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and losses payable to the Secured Party and Bank as sole loss payee. All such insurance shall (A) provide that no termination, cancellation, termination material reduction in amount or material modification change in coverage thereof shall be effective until at least 30 days after receipt by the Secured Party Bank of written notice thereof. , (B) in the case of the policies referenced in clause (ii) above, name the Bank as additional insured and (C) be otherwise reasonably satisfactory to the Bank.
(j) The Grantor hereby appoints Company will keep each item of Equipment in good order and repair and will not use the Secured Party as its attorney-in-fact to make proof same in violation of loss, claim for law or any policy of insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policiesthereon.
(k) The Grantor Company will, promptly upon request, provide to the Secured Party Bank all information and evidence it may reasonably request concerning the Collateral (including without limitation, the names, addresses, face value, and date of invoices for each debtor obligated on each Account) to enable the Secured Party Bank to enforce the provisions of this Agreement.
(l) In the event the Grantor proposes to take any action contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the Secured Party, the Grantor shall, at the Grantor's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F or otherwise in form and substance, and covering such matters relating to such actions, reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantor's ownership of any Copyright, Patent or Trademark which is material to the Grantor's business, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, Patent, or Trademark is infringed, misappropriated or diluted in any material respect by a third party, the Grantor shall notify the Secured Party promptly after it learns thereof and shall, unless the Grantor shall reasonably determine that any of the following actions would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery), promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor shall reasonably deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. The Grantor will give the Secured Party quarterly notice of its filing of any application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency in any other country or any political subdivision thereof, either itself or through any agent, employee or licensee. The Grantor will execute and deliver any and all agreements, instruments, documents and papers the Secured Party may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor relating thereto or represented thereby, and the Grantor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Party, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Security Agreement (Lionbridge Technologies Inc /De/)
Further Assurances Covenants. (aA) The Grantor None of the Companies will not change (i) its name, identity or corporate structure in any manner unless it shall have given the Secured Party not less than 10 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l4(K); (ii) . None of the Companies will change the location of (i) its chief executive office or chief place of business or (ii) the locations where it keeps or holds any Collateral or any records relating thereto from a the applicable location described in its the Perfection Certificate to a location not described in its Perfection Certificate delivered by such Company unless it shall have given the Secured Party not less than 30 days' Agent prior notice thereof and delivered an opinion of counsel with respect thereto in accordance with Section 4(l); or (iii) the locations where it keeps or holds any Collateral (other than Inventory in transit) or any records relating thereto from a location described in its Perfection Certificate to a location not described in its Perfection Certificate unless it gives the Secured Party notice within 10 days thereof and delivers an opinion of counsel with respect thereto in accordance with Section 4(l4(K). The Grantor None of the Companies shall not in any event change the location of any Collateral if such change would cause the Security Interests in such Collateral to lapse or cease to be perfected.
(bB) The Grantor Each Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including, without limitation, including any filings of financing or continuation statements under the Uniform Commercial Code UCC and any filings with the registration in the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, of any unregistered Patent, Trademark or Copyright that is material to the business of such Company, now owned or later acquired by such Company) that from time to time may be necessary or desirable, or that the Secured Party Agent may request, in order to create, preserve, perfect, confirm or validate the Security Interests or to enable the Secured Party (including the Administrative Agent as collateral assignee) Parties to obtain the full benefits of this Agreement, or to enable the Secured Party Agent to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral; PROVIDED that with respect to foreign intellectual property, the Grantor shall only be required to take such action as is reasonably requested by the Secured Party, taking into account the value of the foreign intellectual property and the expense associated with complying with the foregoing. To the extent permitted by applicable law, the Grantor each Company hereby authorizes the Agent, and appoints the Agent as its true and lawful attorney (with full power of substitution, in the name of such Company, the Secured Party Parties or otherwise, for the sole use and benefit of the Secured Parties), to execute and file financing statements or continuation statements without the Grantorsuch Company's signature appearing thereon. The Grantor Each Company agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. The Grantor Each Company shall pay the costs of, or incidental to, any recording or filing of any financing or continuation statements concerning the its Collateral.
(cC) If any Collateral is at any time in the possession or control of any warehouseman, bailee or any of the GrantorCompany's agents or processors upon the occurrence and during the continuance of an Event of Default and upon the written request of the Secured Partyprocessors, the Grantor such Company shall notify such warehouseman, bailee, agent or processor of the Security Interests created hereby and to hold all such Collateral for the Secured PartyAgent's account subject to the Secured PartyAgent's instructions.
(dD) The Grantor Each Company shall keep full and accurate books and records relating to the its Collateral, and stamp or otherwise xxxx such mark xxxh books and records in such manner as the Secured Party Required Lenders may reasonably require in order to reflect the Security Interests.
(eE) The Grantor Each Company will immediately deliver and pledge each Instrument of its Instruments to the Secured PartyAgent, appropriately endorsed to the Secured PartyAgent, PROVIDED provided that so long as no Event of Default shall have occurred and be continuing, the Grantor such Company may retain for collection in the ordinary course any Instruments (other than checks and drafts constituting payments in respect of Accounts, as to which the provisions of Section 4(f5(B) shall apply) received by it in the ordinary course of business and the Secured Party Agent shall, promptly upon request of the Grantorsuch Company, make appropriate arrangements for making any other Instrument pledged by the Grantor such Company available to it for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate to the Secured PartyAgent, against trust receipt or like document).
(fF) The Grantor Each Company shall use its best efforts to cause to be collected from its account debtors, as and when due, any and all amounts owing under or on account of each Account (including, without limitation, including Accounts which are delinquent, such Accounts to be collected in accordance with lawful collection procedures) and shall apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account. Subject to the rights of the Secured Party Parties hereunder if upon the occurrence and during the continuance of an Event of Default shall have occurred and be continuingDefault, the Grantor each Company may allow in the ordinary course of business as adjustments to amounts owing under its Accounts (1i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which the Grantor such Company finds appropriate in accordance with sound business judgment unless such extension, renewal or settlement results in causing such Account to not be an Eligible Receivable and thereby causes the aggregate 128 outstandings Working Capital Borrowings to exceed the Borrowing Base and (2ii) a refund or credit due as a result of returned or damaged merchandisemerchandise or as a discount for prompt payment, all in accordance with the Grantorsuch Company's ordinary course of business consistent with its historical collection practices. The costs and expenses (including, without limitation, attorneys' including attorney's fees) of collection, whether incurred by the Grantor such Company or the Secured PartyAgent, shall be borne by the Grantorsuch Company.
(gG) Upon the occurrence and during the continuance of any Event of Default, upon request of the Secured PartyRequired Lenders through the Agent, the Grantor each Company will promptly notify (and the Grantor such Company hereby authorizes the Secured Party Agent so to notify) each account debtor in respect of any Account or Instrument that such Collateral has been assigned to the Secured Party Agent hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party Agent or its designee.
(hH) The Grantor Each Company shall, (i) as soon as practicable after on or prior to the date hereofLTC Closing Date, in the case of any single piece of Equipment in excess of $250,000 now owned constituting goods in which a security interest is perfected by a notation on the certificate of title or similar evidence of the ownership of such goods, and (1ii) within 10 days of acquiring any other similar Equipment (x) having a value in excess of $250,000 or (y) having a value in excess of $100,000, if the aggregate of all such items owned by the Grantor at any time is greater than $1,000,000Equipment, deliver to the Secured Party Agent any and all certificates of title, applications for title or similar evidence of ownership of such Equipment and shall cause the Secured Party Agent to be named as lienholder on any such certificate of title or other evidence of ownership. The Grantor Each Company shall promptly inform the Secured Party Agent of any additions to or deletions from the Equipment for any single piece of Equipment in excess of $500,000 and shall not permit any such items to become a fixture to real estate (unless the Agent has a first priority Lien thereon pursuant to the Mortgage) or an accession to other personal property.
(iI) Without the prior written consent of the Secured PartyRequired Lenders, none of the Grantor Companies will not sell, lease, exchange, assign or otherwise dispose of, or grant any option with respect to, any Collateral except thatexcept, subject to the rights of the Secured Party Parties hereunder if an Event of Default shall have occurred and be continuing, as permitted under the Grantor may (x) sellCredit Agreement including Section 8.06, lease or exchange Inventory and surplus or worn-out Equipment whereupon, in the ordinary course case of business and such a sale or exchange, the Security Interests created hereby in such item (ybut not in any Proceeds arising from such sale or exchange) consummate shall cease immediately without any Asset Sale or other disposition permitted by further action on the terms part of the Credit AgreementAgent.
(jJ) Within 10 days following the execution of this Agreement, the Grantor will cause the Secured Party to be named as an insured party and loss payee on each insurance policy covering risks relating to any of its Inventory and Equipment. The Grantor will deliver to the Secured Party, upon request of the Secured Party, the insurance policies for such insurance or certificates of insurance evidencing such coverage. Each such insurance policy shall include effective waivers by the insurer of all claims for insurance premiums against the Secured Party or the Lenders, provide for coverage to the Secured Party regardless of the breach by the Grantor of any warranty or representation made therein, not be subject to co-insurance, provide that upon the occurrence and during the continuation of an Event of Default, all insurance proceeds in excess of $200,000 per claim shall be adjusted with and payable to the Secured Party and provide that no cancellation, termination or material modification thereof shall be effective until at least 30 days after receipt by the Secured Party of notice thereof. The Grantor hereby appoints the Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to execute or endorse all documents, checks or drafts in connection with payments made as a result of any insurance policies.
(k) The Grantor Company will, promptly upon request, provide to the Secured Party Agent all information and evidence it may reasonably request concerning the Collateral to enable the Secured Party Agent to enforce the provisions of this Agreement.
(lK) In the event the Grantor Not more than six months nor less than 30 days prior to each date on which any Company proposes to take any action contemplated by Section 4(a)(i4(A), 4(a)(ii) or 4(a)(iii)such Company shall give notice to the Agent of such proposed action, and, at the request of the Secured Party, the Grantor shall, at the Grantorsuch Company's cost and expense, and prior to taking any such proposed action cause to be delivered to the Administrative Agent Secured Parties with such notice, an opinion of counsel, satisfactory to the Administrative Agent, substantially in the form of Exhibit F B (which opinion may rely on certificates of appropriate officers 129 of such Company as to factual matters) to the effect that all financing statements and amendments or otherwise supplements thereto, continuation statements and other documents required to be recorded or filed in form order to perfect and substanceprotect the Security Interests in such Company's Collateral for a period (and after giving effect to the proposed action that is the subject of such notice), specified in such opinion, continuing until a date not earlier than eighteen months from the date of such opinion, against all creditors of and covering purchasers from such Company have been filed in each filing office necessary for such purpose and that all filing fees and taxes, if any, payable in connection with such filings have been paid in full.
(L) From time to time upon request by the Agent, each Company shall, at its cost and expense, cause to be delivered to the Secured Parties an opinion of counsel satisfactory to the Agent as to such matters relating to such actions, the transactions contemplated hereby as the Required Lenders may reasonably satisfactory to the Administrative Agentrequest.
(mM) The Grantor Each Company shall notify the Secured Party Agent immediately if it knows, or has reason to know, knows that any application or registration relating to any Copyright, Patent or Trademark which is material to the Grantor's business may become abandoned or dedicateddedicated (other than applications or registrations (x) with respect to any such Patents or Trademarks that are no longer used or useful in the business of such Company or whose minimal value does not reasonably justify the cost of maintaining such registration or application, or (y) that have been refused by the applicable patent or trademark registry) or of any adverse determination or development (including, without limitation, including the institution of, or any such determination or development in, any proceeding in the United States Copyright Office, the United States Patent and Trademark Office, or any court) regarding the Grantorsuch Company's ownership of any Copyright, Patent or Trademark which is material to the Grantor's businessTrademark, its right to register the same, or to keep and maintain the same. In the event that any material Copyright, right to any Patent, Patent License, Trademark or Trademark License of any Company is infringed, misappropriated or diluted in any material respect by a third party, the Grantor such Company shall notify the Secured Party Agent promptly after it learns thereof and shall, unless the Grantor such Company shall reasonably determine that any of the following actions such action would be unsuccessful or not commercially reasonable (without accounting for any liens on the proceeds of any recovery)negligible economic value, promptly sue xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Grantor such Company shall reasonably deem appropriate under the circumstances to protect such CopyrightPatent, Patent License, Trademark or TrademarkTrademark License. The Grantor will give the Secured Party quarterly notice of its filing of In no event shall any Company, either itself or through any agent, employee or licensee, file an application for the registration of any Copyright with the United States Copyright Office or any Patent or Trademark with the United States Patent and Trademark Office, or with any similar office or agency of the United States, any State thereof, the District of Columbia or with any similar office or agency in any other country or any political subdivision thereofof any of the foregoing, either itself or through any agentunless not less than 10 days prior thereto it informs the Agent, employee or licensee. The Grantor will execute and, upon request of the Agent, executes and deliver delivers any and all agreements, instruments, documents and papers the Secured Party Agent may reasonably request to evidence the Security Interests in such Copyright, Patent or Trademark and the goodwill and general intangibles of the Grantor such 130 Company relating thereto or represented thereby, and the Grantor such Company hereby constitutes the Secured Party Agent its attorney-in-fact to execute and file all such writings for the foregoing purposes to the extent that the Grantor fails or refuses to do so within 10 days of a request from the Secured Partypurposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, shall be irrevocable until the Secured Intercompany Obligations are paid in full.
Appears in 1 contract
Samples: Credit Agreement (Lets Talk Cellular & Wireless Inc)
