GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows: (a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens. (b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors; (c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and (d) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the Investors, in the Collateral.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor represents, Borrower represents and warrants to Secured Party (and covenants, which representations, such representations and warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and be continuing so long as any Notes Obligations shall remain outstanding or any outstanding), as follows: Borrower has been duly organized and is validly existing and in good standing under the laws of the Obligations Commonwealth of Virginia and is duly qualified and in good standing to do business in those other jurisdictions where it does business; Borrower has the Grantor remain unpaid, the Grantor will not execute power and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating authority to own the Collateral, except financing statements filed to enter into and perform this Agreement and any other document or instrument delivered in connection herewith, and to be filed in respect incur or secure the Obligations; and this Agreement and all other related documents and instruments constitute valid, binding obligations of Borrower and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same are enforceable against Borrower in accordance with their terms; and Borrower shall promptly execute and deliver all manufacturer’s specifications and requirementsassignments, certificates of title, conveyances, assignment statements, security agreements, financing statements, continuation statements, and other agreements, instruments and documents as may be reasonably requested by Secured Party at any time to perfect and maintain the security interests and liens granted herein by Borrower; and Borrower shall pay promptly, when due, all taxes (ii) free including, without limitation, all sales, use, excise, personal property, income, withholding and clear corporate franchise taxes), assessments, governmental charges, claims for labor, supplies, rent and any other obligations which, if unpaid, might become a lien against any of all its property except liens for taxes not yet due and encumbrances, payable and liabilities being contested in good faith and with due diligence by Borrower and except for liabilities the liens granted hereby and Permitted Liens; and without amount of which or the consent of contest thereof do not, in Security Party's sole discretion, adversely affect Borrower's financial condition, ability to repay the Senior Collateral AgentObligations, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon security interests and liens of Secured Party in the Collateral or the priority of such security interests and liens; and Borrower shall not permit, or suffer to remain, and will promptly discharge, any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to lien against the Collateral Agent not less than 30 days’ prior written notice of its intention to do soarising from any unpaid tax, clearly describing assessment, levy or governmental charge unless Borrower contests such new location lien or liens in good faith, provides Secured Party with all facts concerning the lien, and providing such other information in connection therewith as the Collateral Agent may reasonably provides Secured Party, at Secured Party's request, with a reasonable bond to protect against such loss; and (ii) In the event Borrower shall fail to pay any such tax, assessment, levy or governmental charge or to discharge any such lien or contest same in good faith, then Secured Party, without waiving or releasing any obligation or default of Borrower hereunder, may at any time or times hereafter make such payment, settlement, compromise or release or cause to be released any such lien, and take any other action with respect thereto which Secured Party deems advisable. All sums paid by Secured Party in satisfaction of, or on account of any tax, levy or assessment or governmental charge, or to discharge or release any lien, and any expenses, including reasonable attorneys' fees, court costs and other charges relating thereto, shall become a part of the Obligations, payable on demand. Borrower agrees to deliver to Secured Party within 30 days after the end of each quarter and within 45 days after the end of each fiscal year unaudited consolidated financial statements of the Borrower. Secured Party agrees to treat such financial statements as strictly confidential. Borrower agrees, upon written request of Secured Party, to furnish Security Party with copies of certificates of insurance with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to insurance as Borrower may maintain the security interest of the Collateral Agent, in favor of the Investors, in on the Collateral.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the applicable Note and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson (other than Permitted Liens), and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for, and (ii) with respect to Permitted Liens.
(d) The Debtor's state of incorporation is Nevada. The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business until (i) it shall have given to the Secured Party not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect. The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all the Collateral and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with this Section 3(d).
(e) The name of the Debtor is as set forth in the recitals hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth in the recitals hereto and "Hawks Industries, Inc."
(f) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Note, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in amounts approved by the Secured Party, for the benefit of the Investors;
Debtor, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(f), the Secured Party may at its option, and (ii) free and clear without affecting any of all liens and encumbrancesits other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, except for procure the liens granted insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral, the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a rate per annum equal to 18%.
(g) Subject to the terms of the Permitted Liens; and without , the consent Debtor hereby assigns to the Secured Party all of the Senior Debtor's right, title and interest in and to any and all moneys which may become due and payable with respect to the Collateral Agentunder any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Grantor Secured Party for application to amounts outstanding under the Notes in accordance with the terms of the Notes and, to the extent not provided therein, in such order as the Secured Party shall determine.
(h) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(i) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dj) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party any claim or defense which the Debtor may have against any seller of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soCollateral, clearly describing such new location and providing such or any part thereof, or against any other information in connection therewith as the Collateral Agent may reasonably request, and (ii) Person with respect to the Collateral, or any part thereof.
(k) The Debtor will indemnify, and hold the Secured Party harmless from and against, any and all loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral, or any part thereof.
(l) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such new locationlists, it except that the Debtor shall have taken such action, satisfactory deliver copies thereof to the Collateral AgentSecured Party upon its request, which may be made at any time and from time to maintain time after an Event of Default.
(m) The Debtor will not enter into any agreement that is materially inconsistent with the security interest Debtor's obligations under this Agreement, without the prior written consent of the Collateral Agent, in favor of the Investors, in the CollateralSecured Party.
Appears in 1 contract
Samples: General Security Agreement (Thorn Tree Resources L L C)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Amended and Restated Note and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors Secured Party herein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson (other than Permitted Liens), and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted LiensExcept for financing statements filed or registered by the Secured Party, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain the Amended and Restated Note remains outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute or authorize to file and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for, and (ii) with respect to Permitted Liens.
(d) The Debtor's state of incorporation is Nevada. The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business. The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all the Collateral and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office.
(e) The name of the Debtor is as set forth in the recitals hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth in the recitals hereto and "Hawks Industries, Inc.".
(f) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Amended and Restated Note, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in amounts approved by the Secured Party, for the benefit of the Investors;
Debtor, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(f), the Secured Party may at its option, and (ii) free and clear without affecting any of all liens and encumbrancesits other rights or remedies provided herein or as a secured party under the UCC, except for procure the liens granted insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral, the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a rate per annum equal to 18%.
(g) Subject to the terms of the Permitted Liens; and without , the consent Debtor hereby assigns to the Secured Party all of the Senior Debtor's right, title and interest in and to any and all moneys which may become due and payable with respect to the Collateral Agentunder any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Grantor Secured Party for application to amounts outstanding under the Amended and Restated Note in accordance with the terms of the Amended and Restated Note and, to the extent not provided therein, in such order as the Secured Party shall determine.
(h) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(i) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dj) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party any claim or defense which the Debtor may have against any seller of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soCollateral, clearly describing such new location and providing such or any part thereof, or against any other information in connection therewith as the Collateral Agent may reasonably request, and (ii) Person with respect to the Collateral, or any part thereof.
(k) The Debtor will indemnify, and hold the Secured Party harmless from and against, any and all loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral, or any part thereof.
(l) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such new locationlists, it except that the Debtor shall have taken such action, satisfactory deliver copies thereof to the Collateral AgentSecured Party upon its request, which may be made at any time and from time to maintain time after an Event of Default.
(m) The Debtor will not enter into any agreement that is materially inconsistent with the security interest Debtor's obligations under this Agreement, without the prior written consent of the Collateral Agent, in favor of the Investors, in the CollateralSecured Party.
Appears in 1 contract
Samples: General Security Agreement (Thorn Tree Resources L L C)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Notes and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Parties therein, the Grantor Debtor or a Subsidiary is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor or a Subsidiary will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Parties.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any the Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not, and will not permit any Subsidiary to, execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Parties hereby granted and provided for and (ii) as specified in SCHEDULE 2 and (iii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this SECTION 3(D). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this SECTION 3(D). Debtor shall establish no such new location until (i) it shall have given to the Placement Agent (as defined in the PPM) or other representative of the Secured Parties elected by holders owning no less than 50.1% of the then aggregate Principal Amount of Notes then outstanding (the "REPRESENTATIVE"), as agent for the Secured Parties (the Placement Agent or the Representative shall hereinafter be referred to as the "AGENT"), not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Agent (including, without limitation, all action required by SECTION 7 hereof), to maintain the security interest of the Secured Parties in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Other than personal computers, laptop computers, printers and related office equipment with an aggregate value that is immaterial to its financial condition, the Debtor has no Collateral located outside of the State of Arizona, but its Subsidiaries will as they acquire FBOs.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name other than that of a Subsidiary while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in SCHEDULE 2 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Notes, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in amounts approved by the Secured Parties, for the benefit of the Investors;
Debtor, its Subsidiaries and the Secured Parties, (cii) at upon request by the Grantor’s own expenseAgent, promptly deliver the Grantor will insurance policies or certificates thereof to the Agent, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this SECTION 3(G), the Agent may at its option, and (ii) free without affecting any of the Secured Parties' other rights or remedies provided herein or as secured parties under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; payable on demand with interest at a rate per annum equal to 18%.
(h) The Debtor hereby assigns, on behalf of itself and without its Subsidiaries, to the consent Secured Parties all of Debtor's and its Subsidiaries' right, title and interest in and to any and all moneys which may become due and payable with respect to the Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Agent for application to amounts outstanding under the Notes in accordance with the terms of the Senior Collateral AgentNotes and, to the Grantor extent not provided therein, in such order as the Agent shall determine.
(i) The Debtor will not, and will not permit any Subsidiary to, use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) The Debtor will not, and will not permit any Subsidiary to, sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Parties any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Parties harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists of it and its Subsidiaries (and cause the Subsidiaries to do the same) and not (nor permit its Subsidiary to) sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Agent upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not, and it will not permit any Subsidiary to, enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralRequired Holders.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of Tenant contained herein, in the Amended Lease No. 4 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinAmended Lease No. 4, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Amended Lease No. 4, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of Tenant to the Grantor Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each of the Entities comprising Tenant are as set forth in Schedule 1 and none of such Entities will not move its chief executive office or establish any other principal place of business except to such new location as such Entity may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each of the Entities comprising Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Entity may establish in accordance with this Section 3(d). None of the Entities comprising Tenant shall move its chief executive office or establish any other principal place of business until (i) it such Entity shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it such Entity shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. Tenant agrees that (i) all such property held by Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of each of the Entities comprising Tenant are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Tenant shall not (i) change such name without providing the Secured Parties with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The organizational structure of Tenant is as set forth in the preamble to this Agreement. Subject to the terms and conditions of the Amended Lease No. 4, Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties’ opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Amended Lease No. 4 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Amended Lease No. 4, without the prior written consent of the Secured Parties. Except as permitted under the Amended Lease No. 4, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) Tenant shall not assert against the Secured Parties any claim or defense which Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by Tenant to perform or observe any of the provisions hereof.
(l) Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of the Tenant contained herein, in the Lease or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Party pursuant to this Security Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinLease, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, hereof the Grantor Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by the Tenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Lease, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of the Grantor Tenant to the Secured Party remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor the Tenant are as set forth in Schedule 1 and the Tenant will not move its chief executive office or establish any other principal place of business except to such new location as the Tenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as the Tenant may establish in accordance with this Section 3(d). The Tenant shall not move its chief executive office or establish any other principal place of business until (i) it the Tenant shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ ' prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it the Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by the Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. The Tenant agrees that (i) all such property held by the Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by the Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The Tenant's corporate name and organizational identification number are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. The Tenant shall not (i) change such name without providing the Secured Party with thirty (30) days' prior written notice and making all filings and taking all such other actions as the Secured Party determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, the Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The Tenant is organized as a Maryland real estate investment trust. Subject to the terms and conditions of the Lease, the Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days' prior written notice thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days' notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party's opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Lease or any other document or agreement executed in connection therewith or herewith, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). The Tenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Tenant shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the Secured Party, to be held pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Lease, without the prior written consent of the Secured Party. Except as permitted under the Lease, the Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party.
(j) The Tenant shall not assert against the Secured Party any claim or defense which the Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv) the failure by the Tenant to perform or observe any of the provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of the Tenant's obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the The chief office executive offices and chief place of business of Grantor the Tenant is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor set forth in SCHEDULE 1 and the Tenant will not move its chief executive office and or its chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ or operations without giving prior written notice thereof to the Secured Party. The originals of all documents evidencing Collateral and the only original books of account and records of the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the Hotels.
(b) The name of the Tenant is as set forth on the signature page hereto. The name under which each of the Hotels is operated is set forth on SCHEDULE 2. The Tenant shall not change such names, conduct its business at or related to the Hotel in any other name or take title to any Collateral in any other name, except as otherwise permitted by the Lease without prior written notification to Secured Party.
(c) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days' notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party's opinion are necessary to discharge any liens which have or may take priority over the lien hereof, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Party by reason of its intention decision not to do so, clearly describing make any payments or perform such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it obligations permitted under this SECTION 3(C). The Tenant shall have taken such action, satisfactory repay to the Collateral Agent, Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to maintain this paragraph shall bear interest at the security interest Overdue Rate.
(d) If any of the Collateral Agentat any time becomes evidenced by an Instrument, in favor the Tenant shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the InvestorsSecured Party, in the Collateralto be held pursuant to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Sholodge Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of the Tenant contained herein, in Amended Lease No. 4 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for the benefit of the Senior Lenders Secured Party pursuant to this Agreement and the security interest granted to the Collateral Agent for the benefit of the Investors hereinany liens permitted under Amended Lease No. 4, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, hereof the Grantor Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by the Tenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under Amended Lease No. 4, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of the Grantor Tenant to the Secured Party remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor the Tenant are as set forth in Schedule 1 and the Tenant will not move its chief executive office or establish any other principal place of business except to such new location as the Tenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as the Tenant may establish in accordance with this Section 3(d). The Tenant shall not move its chief executive office or establish any other principal place of business until (i) it the Tenant shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it the Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by the Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. The Tenant agrees that (i) all such property held by the Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by the Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The Tenant’s corporate name and organizational identification number are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. The Tenant shall not (i) change such name without providing the Secured Party with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Party determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, the Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The Tenant is organized as a Maryland limited liability company. Subject to the terms and conditions of Amended Lease No. 4, the Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days’ notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party’s opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in Amended Lease No. 4 or any other document or agreement executed in connection therewith or herewith, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). The Tenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Tenant shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the Secured Party, to be held pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under Amended Lease No. 4, without the prior written consent of the Secured Party. Except as permitted under Amended Lease No. 4, the Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party.
(j) The Tenant shall not assert against the Secured Party any claim or defense which the Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv) the failure by the Tenant to perform or observe any of the provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of the Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
Samples: Tenant Security Agreement (Five Star Quality Care Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) Except as set forth on Schedule 9.1(b) and except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors Holders herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.Holders;
(b) except with respect to Permitted Liens, Except as set forth on Schedule 9.1(b) there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Convertible Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsHolders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Lienshereby; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and;
(d) the chief executive office and chief place of business of Grantor Amber is located at 00000 Xx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxx, Xxxxx 0000xx Xxxxx, Xxx XxxxxXxxxxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the InvestorsHolders, in the Collateral; and
(e) the Grantor will not amend its certificate of incorporation or other governing documents to change its name or state of incorporation.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Note and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party Representative therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party Representative.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any the Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party Representative hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party Representative not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Party Representative may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party Representative (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Secured Party Representative in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the State(s) of Michigan on the date hereof.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect without the consent of the Secured Party Representative. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 3 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Note, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in reasonable amounts approved by the Secured Party Representative, for the benefit of the Investors;
Debtor and the Secured Party Representative, (cii) at upon request by the Grantor’s own expenseSecured Party Representative, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party Representative, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party Representative may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; payable on demand with interest at a rate per annum equal to 15%.
(h) The Debtor hereby assigns to the Secured Party Representative all of Debtor's right, title and without interest in and to any and all monies which may become due and payable with respect to the consent Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Party Representative for application to amounts outstanding under the Note in accordance with the terms of the Senior Note and, to the extent not provided therein, in such order as the Secured Party Representative shall determine.
(i) The Debtor will not use the Collateral Agent, in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Grantor Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party Representative or the Note Holders any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Party Representative and the Note Holders harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party Representative upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Party Representative.
Appears in 1 contract
Samples: General Security Agreement (Tarpon Industries, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Notes and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lienhen, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any the Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for and (ii) with respect to Permitted Liens,
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party not less than 30 days prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the States of New Jersey and Florida.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 2 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Notes, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in amounts approved by the Secured Party, for the benefit of the Investors;
Debtor and the Secured Party, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; payable on demand with interest at a rate per annum equal to 18%.
(h) The Debtor hereby assigns to the Secured Party all of Debtor's right, title and without interest in and to any and all moneys which may become due and payable with respect to the consent Collateral under any policy insuring the Collateral, including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Party for application tc amounts outstanding under the Notes in accordance with the terms of the Senior Notes and, to the extent not provided therein, in such order as the Secured Party shall determine.
(i) The Debtor will not use the Collateral Agent, in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Grantor Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof
(1) The Debtor will indemnify and hold the Secured Party harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Party.
Appears in 1 contract
Samples: General Security Agreement (Pick Communications Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors Holders herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personperson except for Permitted Encumbrances, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.Holders;
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Convertible Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsHolders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements), and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and for Permitted LiensEncumbrances; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out wornout equipment in the ordinary course of business; and;
(d) the chief principal executive office and chief place of business of Grantor Borrower is located at 00000 Xx Xxxxxx Xxxx000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000Denver, Xxx Xxxxx, XX 00000Co. 80246. The Grantor will not move its chief principal executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the InvestorsHolders, in the Collateral; and
(e) the Grantor will not amend its certificate of incorporation or other governing documents to change its name or state of incorporation.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Notes and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit Security Interest of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens and licenses granted in the ordinary course of business) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for Secured Party (other than Permitted Liens and licenses granted in the benefit ordinary course of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liensbusiness).
(bc) except with respect to Permitted Liens, there There is no financing statement statement, assignment of trademark, or assignment of patent (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or or, to the knowledge of Debtor intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any the Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement statement, assignment of trademark, or assignment of patent (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements statements, assignment of trademark, or assignment of patent filed or to be filed in respect of and covering the security interest Security Interest of the Secured Party hereby granted to the Collateral Agent for the benefit of the Investors;
and provided for, (cii) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirementsthose listed on Schedule 2, and (iiiii) free and clear of all liens and encumbrances, except for the liens granted hereby and with respect to Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and.
(d) the The chief executive office and chief place of business of Grantor the Debtor is located at 00000 Xx Xxxxxx Xxxxthe address of the Debtor listed on the signature page hereof, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until (i) it shall have given to the Collateral Agent Secured Party not less than 30 15 days’ ' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest Security Interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the State of New York or other states in which inventory may be held on consignment.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 2 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Notes, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by financially sound and reputable insurers and in amounts usually carried by similar businesses, for the benefit of the Debtor and the Secured Party, (ii) upon request by the Secured Party, promptly deliver the insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral in good condition at all times (normal wear and tear excepted). Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party may at its option and after 20 days' prior written notice to Debtor, and without affecting any of its other rights or remedies provided herein or as a
(h) The Debtor will not use the Collateral in material violation of any statute or ordinance or applicable insurance policy and will promptly pay all material taxes and assessments levied against the Collateral; provided that the Debtor shall not be required to pay any such tax or assessment that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained.
(i) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify (other than in the ordinary course of business) or abandon the Collateral or any material part thereof other than sales of Inventory in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(j) The Debtor will not assert against the Secured Party any claim or defense which the Debtor may have against any seller of the Collateral Agentor any part thereof or against any other Person with respect to the Collateral or any part thereof.
(k) The Debtor will indemnify and hold the Secured Party harmless from and against any loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral or any part thereof other than liabilities arising as a result of Secured Party's gross negligence or willful misconduct.
(l) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party upon its request, which may be made at any time and from time to time after an Event of Default (as such term is defined in the Notes).
(m) In addition to, and not in limitation of, the foregoing, with respect to the Intellectual Property, the Debtor hereby represents and warrants:
(i) Subject to Permitted Liens, Debtor has the sole, full and clear title to the Trademarks shown on Schedule 2-A hereto for the goods and services covered by the registrations thereof and such registrations are valid and subsisting.
(ii) Debtor will perform all acts and execute all documents, to the extent reasonable, including, without limitation, assignments for security in form suitable for filing with the United States Patent and Trademark Office, substantially in the forms of Exhibits 1 and 2 hereof, respectively, requested by the Secured Party at any time to evidence, perfect, maintain, record and enforce the Secured Party's interest in the Patents and Trademarks or otherwise in furtherance of the provisions of this Agreement, and Debtor hereby authorizes the Secured Party to execute and file one or more financing statements (and similar documents) or copies thereof or of this Agreement with respect to the Intellectual Property signed only by the Secured Party.
(iii) None of the Trademarks have been abandoned or invalidated, and, except to the extent that the Secured Party, upon 10 days' prior written notice by the Debtors, shall consent, and except to the extent such Debtor has a valid business purpose for doing otherwise (so long as any action on the part of any such Debtor would not have a material adverse effect on Debtor's business), Debtor (either itself or through licensees) will continue to use the Trademarks on each and every trademark class of goods in order to maintain the Trademarks in full force free from any claim of abandonment for nonuse and Debtor will not (nor will it permit any licensee thereof to) do any act or knowingly omit to do any act whereby any Trademark may become abandoned or invalidated, and Debtor shall notify the Secured Party immediately if it knows of any reason or has reason to know that any pending application or issued Trademark may become abandoned or invalidated.
(iv) Subject to Permitted Liens, Debtor has the sole, full and clear title to each of the Patents shown on Schedule 2-B hereto and the issued Patents are subsisting. None of the Patents has been abandoned or dedicated, and, except to the extent that the Secured Party, upon 10 days' prior written notice by the Debtor, shall consent, and except to the extent such Debtor has a valid business purpose for doing otherwise (so long as any action on the part of any such Debtor would not have a material adverse effect on Debtor's business), Debtor will not do any act, or omit to do any act, whereby the Patents may become abandoned or dedicated and shall notify the Secured Party immediately if it knows of any reason or has reason to know that any pending application or issued Patent may become abandoned or dedicated.
(v) In no event shall Debtor, either itself or through any agent, employee, licensee or designee, (A) file an application for the registration of any Patent or Trademark with the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof or (B) file any assignment of any patent or trademark, which Debtor may acquire from a third party, with the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, unless Debtor shall promptly notify the Secured Party thereof, and, upon request of the Secured Party, execute and deliver any and all assignments, agreements, instruments, documents and papers as the Secured Party may reasonably request to evidence the Secured Party's interest in such Patent or Trademark and the goodwill and general intangibles of Debtor relating thereto or represented thereby, and Debtor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed, such power being coupled with an interest is irrevocable until the Secured Obligations are paid in full.
(vi) Except to the extent that the Secured Party, upon prior written notice from Debtor, shall consent (which consent shall not be unreasonably withheld), Debtor will not assign, sell, mortgage, lease, transfer, pledge, hypothecate, grant a security interest in or lien upon, encumber, grant an exclusive or non-exclusive license (except in the ordinary course of business), or otherwise dispose of any of the Intellectual Property, and nothing in this Agreement shall be deemed a consent by the Secured Party to any such action except as expressly permitted herein. Notwithstanding the foregoing, the Debtor may sell its training center operations.
(vii) As of the date hereof neither Debtor nor any affiliate or subsidiary thereof owns any Patents or Trademarks registered in, or the subject of pending applications in, the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, other than those described in Schedules 2-A and 2-B hereto.
(viii) Except to the extent Debtor has a valid business purpose for doing otherwise (so long as any action on the part of Debtor would not have a material adverse effect on Debtor's business), Debtor will take all necessary steps in any proceeding before the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, to maintain each application and registration of the Trademarks and Patents, including, without limitation, filing of renewals, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings (except to the extent that dedication, abandonment or invalidation is permitted under paragraphs (ii) and (iii) hereof).
(ix) Debtor agrees that the Secured Party does not assume, and shall have no responsibility for, the payment of any sums due or to become due under any agreement or contract included in the Intellectual Property or the performance of any obligations to be performed under or with respect to any such agreement or contract by Debtor, and the Debtor hereby agrees to indemnify and hold the Secured Party harmless with respect to any and all claims by any person relating thereto.
(x) Debtor agrees that if it, or any affiliate or subsidiary thereof, learns of any use by any person of any term or design likely to cause confusion with any Trademark, it shall promptly notify the Secured Party of such use and, if requested by the Secured Party, shall join with the Secured Party, at the Secured Party's expense, in favor such action as the Secured Party, in its reasonable discretion may deem advisable for the protection of the InvestorsSecured Party's interest in and to such Trademarks.
(xi) All licenses of Trademarks and Patents which Debtor has granted to third parties are set forth in Schedule B hereto.
(xii) If Debtor shall acquire title to any new Trademarks or Patents, the provisions of this Agreement shall automatically apply thereto. Debtor shall promptly notify the Secured Party in writing of any rights to any new Trademarks or Patents acquired by Debtor after the date hereof and of any registrations issued or applications for registration made after the date hereof. Concurrently with the filing of an application for registration for any Trademarks or Patents, Debtor shall execute, deliver and record in all places where this Agreement is recorded an appropriate agreement, substantially in the form hereof, with appropriate insertions, or an amendment to this Agreement, in form and substance reasonably satisfactory to the CollateralSecured Party, pursuant to which Debtor shall grant a security interest to the extent of its interest in such registration as provided herein to the Secured Party.
Appears in 1 contract
Samples: General Security Agreement (Eb2b Commerce Inc /Ny/)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor represents, CLIENT warrants and covenants, which representations, warranties and and/or covenants shall survive execution and delivery that during the term of this Agreement, Agreement and so long as followsany Liabilities to PURCHASER remain unpaid that:
(a) CLIENT is a corporation duly organized, existing, and in good standing under the laws of the state or country of its incorporation, as represented at the beginning of this Agreement, qualified or licensed to do business in all other countries, states and provinces in which the laws thereof require CLIENT to be so qualified and/or licensed, except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted extent that a failure to the Collateral Agent for the benefit of the Investors herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance be so qualified or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.licensed would not have a material affect on CLIENT;
(b) except with respect to Permitted LiensCLIENT has not, there is no financing statement during the preceding five (5) years preceding the Agreement, been at any other location or similar statement known as or instrument of registration under the law of used any jurisdiction) now on file other corporate or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateralfictitious name, except financing statements filed or as disclosed to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;PURCHASER.
(c) CLIENT has the corporate power and authority to make, deliver and perform this Agreement and the other agreements hereunder and has taken all corporate action necessary to be taken by it to authorize the sale of its Accounts on the terms and conditions of this Agreement;
(d) CLIENT’S business is solvent;
(e) CLIENT will file all federal, state and local tax returns and other reports CLIENT is required by law to file, maintain adequate reserves for the payment of all taxes, assessments, governmental charges, and other similar charges, and (unless being contested in good faith) pay promptly, when due, all such taxes, assessments, and other charges.
(f) At the time an Account is offered for sale by CLIENT to PURCHASER, said Customer’s business is, to the best of CLIENT’S information and knowledge, solvent;
(g) CLIENT is, at the Grantor’s own expensetime of purchase by PURCHASER, the Grantor will keep lawful owner of and has good and undisputed title to the Collateral Accounts purchased by PURCHASER;
(h) Each Account offered for sale to PURCHASER is an accurate and undisputed statement of obligations by Customer to CLIENT for a sum certain which is due and payable in thirty days or less or on such other terms, as are acceptable to PURCHASER in its discretion, which are expressly set forth on the face of all invoices;
(i) Each Account offered for sale to PURCHASER is an accurate statement of a bona fide sale, delivery and acceptance of merchandise or performance of service by CLIENT to Customer;
(j) CLIENT does not own, control or exercise dominion over, in good condition any way whatsoever, the business of any Customer; Purchasing Agreement-Page No. 4. PUR.BIN 10\00
(k) All financial records, statements, books or other documents of CLIENT shown to PURCHASER by CLIENT at any time, either before or after the signing of this Agreement are true and accurate in all times material respects;
(normal wear l) CLIENT shall not, under any circumstances or in any manner whatsoever, interfere with any of PURCHASER’S rights under this Agreement;
(m) CLIENT shall offer all of its Accounts to PURCHASER and tear exceptedwill not purchase or sell Accounts except to PURCHASER for the period of this Agreement;
(n) CLIENT will not transfer, pledge or give a security interest in nor permit any lien upon any of its Collateral to any other party, except as subordinated to PURCHASER;
(o) CLIENT shall not change or modify the terms of an original Account with any Customer unless PURCHASER first consents to such change in writing. For example, CLIENT may not extend credit to a Customer beyond thirty days without prior written consent from PURCHASER;
(p) CLIENT will maintain such insurance covering CLIENT’S business and/or the property of CLIENT’S Customers as is customary for businesses similar to the business of CLIENT and, at the request of PURCHASER, name PURCHASER as loss payee of such insurance;
(q) CLIENT will notify PURCHASER in writing prior to any change in CLIENT’S place of business, or, if CLIENT has or acquires more than one place of business, or prior to any change in CLIENT’S principal executive office or the office or offices where CLIENT’S books and maintain same records concerning Accounts are kept;
(r) CLIENT will immediately notify PURCHASER of any proposed or actual change of CLIENT’S name, location, identity, legal entity or corporate structure;
(s) CLIENT will, when requested by PURCHASER, execute any written instruments and do any other things necessary to effectuate more fully the purposes and provisions of this Agreement, including without limitation, executing and filing financing statements in accordance with all manufacturerform and substance satisfactory to PURCHASER. Furthermore, CLIENT authorizes PURCHASER to execute and file financing statements, as PURCHASER deems necessary, on CLIENT’s specifications and requirementsbehalf;
(t) All of the Collateral is owned by CLIENT alone, and (ii) free and clear of all liens and encumbrancesliens, claims, security interest(s) or encumbrances except for the liens those granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify PURCHASER or abandon the Collateral or any part thereof other than sales of inventory those specifically disclosed in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andwriting to PURCHASER;
(du) the chief office CLIENT will furnish PURCHASER with financial statements and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information as reasonably requested by PURCHASER from time to time;
(v) CLIENT will furnish PURCHASER upon request satisfactory proof of payment (unless such amount is being disputed in connection therewith as good faith) and/or compliance with all Federal, State and/or local tax requirements;
(w) CLIENT will promptly notify PURCHASER of any attachment or any other legal process levied against CLIENT or any of CLIENT’S Customers known to CLIENT;
(x) CLIENT will not pledge the Collateral Agent may reasonably requestcredit of PURCHASER to any person or business for any purpose whatsoever;
(y) CLIENT will, immediately upon sale of Accounts to PURCHASER, make proper entries on its books and records disclosing the absolute sale of said Accounts to PURCHASER;
(iiz) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the Investors, in the CollateralCLIENT’S Federal Employment Identification Number is 00-0000000.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of Tenant contained herein, in the Amended Lease No. 2 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinAmended Lease No. 2, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Amended Lease No. 2, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of Tenant to the Grantor Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each of the Entities comprising Tenant are as set forth in Schedule 1 and none of such Entities will not move its chief executive office or establish any other principal place of business except to such new location as such Entity may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each of the Entities comprising Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Entity may establish in accordance with this Section 3(d). None of the Entities comprising Tenant shall move its chief executive office or establish any other principal place of business until (i) it such Entity shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it such Entity shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. Tenant agrees that (i) all such property held by Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of each of the Entities comprising Tenant are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Tenant shall not (i) change such name without providing the Secured Parties with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The organizational structure of Tenant is as set forth in the preamble to this Agreement. Subject to the terms and conditions of the Amended Lease No. 2, Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties’ opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Amended Lease No. 2 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Amended Lease No. 2, without the prior written consent of the Secured Parties. Except as permitted under the Amended Lease No. 2, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) Tenant shall not assert against the Secured Parties any claim or defense which Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by Tenant to perform or observe any of the provisions hereof.
(l) Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor representsObligors represent, warrants warrant and covenantscovenant, as applicable, which representations, warranties and covenants shall survive execution until all Bank Indebtedness and delivery all other obligations of this AgreementObligors to Bank are paid and satisfied in full, as follows:
(a) All representations and warranties of Obligors set forth in the Loan Documents, as amended hereby, except for the security interest granted such representations and warranties that are by their express terms limited to the Senior Collateral Agent for the benefit a specific prior date, are true and correct as of the Senior Lenders date hereof and the security interest granted to the Collateral Agent for the benefit of the Investors herein, the Grantor is, are hereby confirmed and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liensrestated.
(b) except with respect to Permitted Liens, there is no financing statement No condition or event exists or has occurred which would constitute an Event of Default under the Loan Documents (or similar statement would, upon the giving of notice or instrument the passage of registration under the law time or both, constitute an event of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;default).
(c) at The execution and delivery of this Amendment by Obligors and all documents and agreements to be executed and delivered pursuant to the Grantor’s own expense, the Grantor will keep the Collateral terms hereof;
(i) in good condition at have been duly authorized by all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and requisite corporate action of Obligors;
(ii) free and clear will not violate or result in the breach of all liens and encumbrancesor constitute a default (upon the passage of time, delivery of notice or both) under any applicable statute, law, rule, regulation or ordinance or any indenture, mortgage, loan or other document or agreement to which any Obligor is a party or by which any of them is bound or affected; or
(iii) will not result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Obligor, except for the liens granted hereby and Permitted Liens; and without the consent in favor of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andBank.
(d) Obligors ratify and confirm all of their obligations under the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx XxxxLoan Documents, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest including without limitation all obligations of the Collateral Agent, Guarantors under their respective surety agreements in favor of Bank which the InvestorsGuarantors agree shall continue to secure all of the Borrowers' obligations under the Loan Documents, in the Collateralas modified hereby and all Bank Indebtedness.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a1) except for All filings, registrations and recordings necessary to create, preserve, protect and perfect the security interest granted by such Assignor to the Senior Collateral Agent for the benefit hereby in respect of the Senior Lenders Collateral have been accomplished and the security interest granted to the Collateral Agent for pursuant to this Agreement in and to the benefit Collateral constitutes a perfected security interest therein superior and prior to the rights of all other Persons therein and subject to no other Liens (other than Liens permitted by Section 9.01 of the Investors hereinCredit Agreement) and is entitled to all the rights, the Grantor priorities and benefits afforded by applicable law as enacted in any relevant jurisdiction to perfected security interests.
(2) Each Assignor is, and as to Collateral acquired by it from time to time after the date hereof, the Grantor hereof such Assignor will be, the owner of all the Collateral free from any lienLien, security interest, interest encumbrance or other right, title or interest of any personPerson (other than statutory liens and retentions of title incurred in the ordinary course of business), and the Grantor such Assignor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d3) the The chief executive office and chief place of business of Grantor each Assignor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000the address indicated on ANNEX A hereto. The Grantor No Assignor will not move its chief executive office except to such new location as such Assignor may establish in accordance with the last sentence of this Section 3, paragraph 3. The originals of all documents evidencing all Receivables of such Assignor and the only original books of account and records of such Assignor relating thereto are, and will continue to be, kept at such chief place executive office, or at such new locations as such Assignor may establish in accordance with the last sentence of business this Section 3, paragraph 3. All Receivables of such Assignor are, and will continue to be, maintained at, and controlled and directed (including, without limitation, for general accounting purposes) from, the office locations described above, or such new locations as such Assignor may establish in accordance with the last sentence of this Section 3, paragraph 3. No Assignor shall establish new locations for such offices until (i) it shall have given to the Collateral Agent not less than 30 days’ ' prior written notice (or such lesser notice as shall be acceptable to the Collateral Agent in the case of a new record location to be established in connection with newly acquired Contracts) of its intention so to do sodo, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such all action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, Agent in favor the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. The Assignors shall not change their corporate seat or chief executive office into a jurisdiction other than the Federal Republic of Germany without the expressly given prior written consent of the InvestorsCollateral Agent.
(4) All Inventory and Equipment held on the date hereof by each Assignor is located at one of the locations shown on ANNEX B attached hereto. Each Assignor agrees that all Inventory and Equipment now held or subsequently acquired by it shall be kept at (or shall be in transport to or from) any one of the locations shown on ANNEX B hereto, or such new location as such Assignor may establish in accordance with the last sentence of this Section 3, paragraph 4. An Assignor may establish a new location for Inventory and Equipment only if (i) it shall have given to the Collateral Agent prior written notice of its intention so to do, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken all action reasonably satisfactory to the Collateral Agent to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect.
(5) No Assignor does have or operate in any jurisdiction under, or in the preceding five years has had or has operated in any jurisdiction under, any trade names, fictitious names or other names (including, without limitation, any names of divisions or operations) except its legal name. No Assignor shall change its legal name or assume or operate in any jurisdiction under any trade, fictitious or other name except in accordance with the last sentence of paragraph 5. No Assignor shall assume or operate in any jurisdiction under any new trade, fictitious or other name or operate under any existing name in any additional jurisdiction until (i) it shall have given to the Collateral Agent not less than 30 days' prior written notice of its intention so to do, clearly describing such new name and/or jurisdiction and, in the Collateralcase of a new name, the jurisdictions in which such new name shall be used and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new name and/or new jurisdiction, it shall have taken all action to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect.
(6) This Agreement is made with full recourse to the relevant Assignor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Assignor contained herein and otherwise in writing in connection herewith or therewith.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Guaranty and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Parties therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Parties.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain the Guaranty remains outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Parties hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Parties not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Parties may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Parties (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Parties in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the State of Michigan on the date hereof.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect without the consent of the Secured Parties. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 3 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in reasonable amounts approved by the Secured Parties, for the benefit of the Investors;
Debtor and the Secured Parties, (cii) at upon request by the Grantor’s own expenseSecured Parties, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Parties, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 4(g), the Secured Parties may at its option, and (ii) free without affecting any of their other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection one or both deem necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; and without payable on demand with interest at a rate per annum equal to 15%.
(h) Subject to the consent rights of the holders of the Senior Collateral AgentIndebtedness, the Grantor Debtor hereby assigns to the Secured Parties all of Debtor's right, title and interest in and to any and all monies which may become due and payable with respect to the Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Parties for application to amounts outstanding under the Note in accordance with the terms of the Note and, to the extent not provided therein, in such order as the Secured Parties shall determine.
(i) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof there- of other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Parties any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Parties harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Parties upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Parties.
Appears in 1 contract
Samples: General Subordinated Security Agreement (Tarpon Industries, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Corporation represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for with the security interest granted to the Senior Collateral Warrant Agent for the benefit of the Senior Lenders Warrant Agent and the security interest granted to the Collateral Agent Warrantholders that so long as any Warrants remain outstanding:
(a) it will reserve and keep available a sufficient number of Common Shares for the benefit purpose of enabling it to satisfy its obligations to issue Common Shares upon the exercise of the Investors herein, Warrants;
(b) it will cause the Grantor is, and as to Collateral acquired Common Shares from time to time after acquired pursuant to the date hereof, exercise of the Grantor will be, Warrants to be duly issued and delivered in accordance with the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Warrants and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investorsterms hereof;
(c) at all Common Shares which shall be issued upon exercise of the Grantor’s own expenseright to acquire provided for herein shall be fully paid and non-assessable, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens encumbrances;
(d) it will use reasonable commercial efforts to maintain its existence and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory carry on its business in the ordinary course course;
(e) it will use reasonable commercial efforts to ensure that all Common Shares outstanding or issuable from time to time (including without limitation the Common Shares issuable on the exercise of business the Warrants) continue to be or are listed and posted for trading on the CSE (or such other Canadian stock exchange acceptable to the Corporation), provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Common Shares ceasing to be listed and posted for trading on the CSE, so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada, or cash, or the holders of the Common shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the disposition policies of obsolete the CSE;
(f) it will make all requisite filings under applicable Canadian securities legislation including those necessary to remain a reporting issuer not in default in each of the provinces and other Canadian jurisdictions where it is or wornbecomes a reporting issuer;
(g) the issue of the Warrants and the issue of the Common Shares issuable upon exercise thereof does not and will not, so long as any Warrants remain outstanding, result in any breach by the Corporation of, and does not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach by the Corporation of any Applicable Legislation, and does not and will not conflict with any of the terms, conditions or provisions of the articles, by-laws or resolutions of the Corporation or any trust indenture, loan agreement or any other agreement or instrument to which the Corporation is a party or by which it is contractually bound on the date of this Warrant Indenture;
(h) generally, it will well and truly perform and carry out equipment all of the acts or things to be done by it as provided in the ordinary course of businessthis Indenture; and
(di) the chief office Corporation will promptly notify the Warrant Agent and chief place the Warrantholders in writing of business any default under the terms of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move this Warrant Indenture which remains unrectified for more than five days following its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the Investors, in the Collateraloccurrence.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement (and shall survive until indefeasible payment in full of all of Debtor's obligations under the Loan Agreement), as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Loan Agreement and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the sole legal and beneficial owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named therein, and so therein except for those listed on Schedule 2 hereto without an asterisk to indicate that such financing statement is to be terminated or released on the Closing Date. So long as any Notes remain outstanding the Loan Agreement remains in effect or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for and except with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office or chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Accounts and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall not establish any such new location for its chief executive office or chief place of business until (i) it shall have given to the Secured Party not less than 45 days' prior written notice of its intention so to do, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Party in the Accounts intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the States listed on Schedule 5 hereto. Debtor has no Inventory, Equipment or other Collateral at any location except the location(s) listed on Schedule 1 hereto. For so long as Debtor owns its Inventory, Equipment and other Collateral, Debtor will not move any such Collateral to, or place any such Collateral at any other location except such new location(s) as the Debtor may establish in accordance with the next sentence of this Section 3(e). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party not less than 45 days' prior written notice of its intention so to do, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Party in such Collateral at all times fully perfected and in full force and effect. The notification required by clause (i) of the preceding sentence may be contained in a periodic monthly or quarterly report delivered to the Secured Party pursuant to Section 7.1 of the Loan Agreement if said report is delivered prior to the 45-day period referred to in said clause (i).
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 2 annexed hereto and the assets of the Debtor acquired in the Acquisition were not held (prior to their sale to Debtor) by the Seller under any name other than as set forth on Schedule 2 hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Loan Agreement, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workmen's compensation laws, by insurers and in amounts satisfactory to the Secured Party, for the benefit of the Investors;
Debtor and the Secured Party, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Lienspayable on demand with interest at a rate per annum equal to the Post-Default Rate in effect from time to time.
(h) The Debtor hereby assigns to the Secured Party all of Debtor's right, title and interest in and to any and all moneys which may become due and payable with respect to the Collateral under any policy insuring the Collateral, including return of unearned premium. Debtor hereby (unless the Secured Party otherwise consents in writing or as otherwise provided in the Loan Agreement), to the extent that (x) the proceeds of such insurance are in excess of $100,000 or (y) if less than $100,000, Debtor does not use any such money to replace, repair or restore the Collateral, or (z) a Default or Event of Default exists, directs any such insurance company to make payment directly to the Secured Party; and without authorizes the consent Secured Party to apply such moneys in payment on account of the Senior indebtedness secured hereby, whether or not due, or toward replacement of the Collateral Agentand to remit any surplus to the Debtor subject however to the terms of the Loan Agreement.
(i) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) Except as may otherwise be permitted by Sections 8.9 and 8.15 of the Loan Agreement, the Grantor Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any material part thereof other than (except for sales of inventory in the ordinary course of business and except as otherwise permitted pursuant to Section 5(c) of this Agreement), without the disposition prior written consent of the Secured Party, provided that the Debtor may sell or otherwise dispose of obsolete or worn-worn out equipment Collateral no longer used or useful in its business if the Debtor shall, in the ordinary course case of business; andCollateral necessary for the conduct of the business of the Debtor, first or substantially simultaneously replace the same with new property of substantially equal value which shall forthwith become subject to the security interest provided for herein.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent or any part thereof.
(l) The Debtor will indemnify and hold the Secured Party harmless from and against any loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral or any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not less than 30 days’ sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party upon its request, which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written notice consent of its intention to do sothe Secured Party.
(o) Upon the occurrence of an Event of Default and at any time thereafter, clearly describing such new location and providing such other information in connection therewith (x) the Secured Party may (insofar as the Debtor can give authority therefor) enter upon any premises on which the Collateral Agent may reasonably requestor any part thereof is located and remove such Collateral from such premises, and (iiy) with respect to at its own expense, Debtor shall (upon request of the Secured Party) assemble the Collateral (or such new location, portion thereof as is covered by such request) and make it shall have taken such action, satisfactory available to the Collateral Agent, to maintain Secured Party at a place designated by the security interest of the Collateral Agent, in favor of the Investors, in the CollateralSecured Party.
Appears in 1 contract
Samples: General Security Agreement (Family Christian Stores Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the applicable Secured Notes and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson (other than Permitted Liens), and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted LiensExcept for financing statements filed or registered by the Secured Party, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Secured Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for, and (ii) with respect to Permitted Liens.
(d) The Debtor's state of incorporation is Nevada. The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business until (i) it shall have given to the Secured Party not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect. The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all the Collateral and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with this Section 3(d).
(e) The name of the Debtor is as set forth in the recitals hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth in the recitals hereto and "Hawks Industries, Inc."
(f) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Secured Notes, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in amounts approved by the Secured Party, for the benefit of the Investors;
Debtor, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(f), the Secured Party may at its option, and (ii) free and clear without affecting any of all liens and encumbrancesits other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, except for procure the liens granted insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral, the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a rate per annum equal to 18%.
(g) Subject to the terms of the Permitted Liens; and without , the consent Debtor hereby assigns to the Secured Party all of the Senior Debtor's right, title and interest in and to any and all moneys which may become due and payable with respect to the Collateral Agentunder any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Grantor Secured Party for application to amounts outstanding under the Secured Notes in accordance with the terms of the Secured Notes and, to the extent not provided therein, in such order as the Secured Party shall determine.
(h) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(i) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dj) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party any claim or defense which the Debtor may have against any seller of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soCollateral, clearly describing such new location and providing such or any part thereof, or against any other information in connection therewith as the Collateral Agent may reasonably request, and (ii) Person with respect to the Collateral, or any part thereof.
(k) The Debtor will indemnify, and hold the Secured Party harmless from and against, any and all loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral, or any part thereof.
(l) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such new locationlists, it except that the Debtor shall have taken such action, satisfactory deliver copies thereof to the Collateral AgentSecured Party upon its request, which may be made at any time and from time to maintain time after an Event of Default.
(m) The Debtor will not enter into any agreement that is materially inconsistent with the security interest Debtor's obligations under this Agreement, without the prior written consent of the Collateral Agent, in favor of the Investors, in the CollateralSecured Party.
Appears in 1 contract
Samples: General Security Agreement (Thorn Tree Resources L L C)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Guaranty and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party Representative therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party Representative.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain the Guaranty remains outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party Representative hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party Representative not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other in- formation in connection therewith as the Secured Party Representative may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party Representative (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Party Representative in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the State of Michigan on the date hereof.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect without the consent of the Secured Party Representative. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 3 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in reasonable amounts approved by the Secured Party Representative, for the benefit of the Investors;
Debtor and the Secured Party Representative, (cii) at upon request by the Grantor’s own expenseSecured Party Representative, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party Representative, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 4(g), the Secured Party Representative may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; and without payable on demand with interest at a rate per annum equal to 15%.
(h) Subject to the consent rights of the holders of the Senior Collateral AgentIndebtedness, the Grantor Debtor hereby assigns to the Secured Party Representative all of Debtor's right, title and interest in and to any and all monies which may become due and payable with respect to the Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Party Representative for application to amounts outstanding under the Note in accordance with the terms of the Note and, to the extent not provided therein, in such order as the Secured Party Representative shall determine.
(i) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party Representative or the Note Holders any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Party Representative and the Note Holders harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party Representative upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Party Representative.
Appears in 1 contract
Samples: General Subordinated Security Agreement (Tarpon Industries, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of Tenant contained herein, in the Amended Lease No. 3 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinAmended Lease No. 3, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Amended Lease No. 3, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of Tenant to the Grantor Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Tenant are as set forth in Schedule 1 and Tenant will not move its chief executive office or establish any other principal place of business except to such new location as Tenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as Tenant may establish in accordance with this Section 3(d). Tenant shall not move its chief executive office or establish any other principal place of business until (i) it Tenant shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. Tenant agrees that (i) all such property held by Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of Tenant is set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Tenant shall not (i) change such name without providing the Secured Parties with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. Tenant is organized as a Maryland business trust. Subject to the terms and conditions of the Amended Lease No. 3, Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties’ opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Amended Lease No. 3 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Amended Lease No. 3, without the prior written consent of the Secured Parties. Except as permitted under the Amended Lease No. 3, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) Tenant shall not assert against the Secured Parties any claim or defense which Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by Tenant to perform or observe any of the provisions hereof.
(l) Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Subtenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of such Subtenant contained herein or in any other document executed by such Subtenant in connection herewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for the benefit of the Senior Lenders Secured Party pursuant to this Agreement and the security interest granted to the Collateral Agent for the benefit of the Investors hereinany liens permitted under Lease No. 5, the Grantor each Subtenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof such Subtenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor such Subtenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by such Subtenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under Lease No. 5, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of such Subtenant to the Grantor Secured Party remain unpaid, the Grantor such Subtenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each Subtenant are as set forth in Schedule 1 and such Subtenant will not move its chief executive office or establish any other principal place of business except to such new location as such Subtenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of such Subtenant’s Subleased Properties is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each Subtenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Subtenant may establish in accordance with this Section 3(d). No Subtenant shall move its chief executive office or establish any other principal place of business until (i) it such Subtenant shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it such Subtenant shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by such Subtenant to be used in connection with the operation or maintenance of each Subleased Property of such Subtenant, or any portion thereof, is located at each applicable Subleased Property or is in transit to such Subleased Property from the vendor thereof. Each Subtenant agrees that (i) all such property held by such Subtenant on the date hereof, once at each applicable Subleased Property, shall remain at such Subleased Property and (ii) all such property subsequently acquired by such Subtenant shall immediately upon acquisition be transferred to and remain at the applicable Subleased Property.
(f) Such Subtenant’s corporate name and organizational identification number are as set forth on Schedule 1 attached hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Each Subtenant agrees that it shall not (i) change such names without providing the Secured Party with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Party determines is necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, no Subtenant has ever had any other name or conducted business in any other name in any jurisdiction. Each Subtenant’s organizational structure is as set forth on Schedule 1 attached hereto. Subject to the terms and conditions of Lease No. 5 and the Subleases, no Subtenant shall change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days’ notice to the applicable Subtenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party’s opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in Lease No. 5 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. No Subtenant shall have any claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Each Subtenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Subtenant which owns such Collateral shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the Secured Party, to be held pursuant to this Agreement.
(i) No Subtenant shall sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under Lease No. 5, without the prior written consent of the Secured Party. Except as permitted under Lease No. 5, no Subtenant shall create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party.
(j) No Subtenant shall assert against the Secured Party any claim or defense which such Subtenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Each Subtenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv) the failure by such Subtenant to perform or observe any of the provisions hereof.
(l) Each Subtenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of such Subtenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
Samples: Transaction Agreement (Senior Housing Properties Trust)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit holders of the Senior Lenders Pari Passu Notes and the security interest granted to the Collateral Agent for the benefit of the Investors Noteholders herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.Noteholders;
(b) except with respect other than as relate to Permitted Liensthe Pari Passu Notes, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, other than as relate to the Pari Passu Notes the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsNoteholders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby to the holders of the Pari Passu Notes and Permitted Liensthose granted hereby; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief executive office and chief place of business of the Grantor is located at 00000 Xx Xxxxxx Xxxx2000 Xxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxx Xxxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Noteholders, of if a Collateral Agent has been appointed hereunder, the Collateral Agent, not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Requisite Holders or Collateral Agent Agent, as applicable, may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Requisite Holders or Collateral Agent, as applicable, to maintain the security interest of the Collateral Agent, in favor of the Investors, Noteholders in the Collateral.
Appears in 1 contract
Samples: Security Agreement (BeesFree, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Subtenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of such Subtenant contained herein or in any other document executed in connection herewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Party pursuant to this Security Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinLease, the Grantor such Subtenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof such Subtenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor Subtenants shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by such Subtenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Lease, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of such Subtenant to the Grantor Secured Party remain unpaid, the Grantor such Subtenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor such Subtenant are as set forth on Schedule 1 and such Subtenant will not move its chief executive office nor establish any other principal place of business except to such new location as such Subtenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of such Subtenant's Subleased Properties are as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of such Subtenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as the Subtenants may establish in accordance with this Section 3(d). No Subtenant shall move its chief executive office or establish any other principal place of business until (i) it such Subtenant shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ ' prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it such Subtenant shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by such Subtenant to be used in connection with the operation or maintenance of each Subleased Property of such Subtenant, or any portion thereof, is located at each applicable
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors Noteholders herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.Noteholders;
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsNoteholders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Lienshereby; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief executive office and chief place of business of the Grantor is located at 00000 Xx Xxxxxx Xxxx2000 Xxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxx Xxxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Noteholders, of if a Collateral Agent has been appointed hereunder, the Collateral Agent, not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Requisite Holders or Collateral Agent Agent, as applicable, may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Requisite Holders or Collateral Agent, as applicable, to maintain the security interest of the Collateral Agent, in favor of the Investors, Noteholders in the Collateral.
Appears in 1 contract
Samples: Security Agreement (BeesFree, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Borrower represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this AgreementDeed, as follows:
(a) except for So long as any Secured Obligations are outstanding, the security Borrower’s right, title and interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to in the Collateral Agent for the benefit of the Investors herein, the Grantor is, is and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral be free from any lienLien, security interest, encumbrance or other than Permitted Liens. The Borrower shall defend such right, title or and interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent or the Lenders (other than the holders of Permitted Liens).
(b) This Deed is effective to create in favor of the Collateral Agent for the ratable benefit of the Senior Lenders Secured Parties a security interest in and assignment of all of the Borrower’s right, title and interest in and to the Collateral now owned or acquired from time to time after the date hereof by the Borrower under the laws of the State of New York, which security interest and assignment are entitled to all the rights, priorities and benefits afforded by the Uniform Commercial Code or other relevant law to perfected security interests or collateral assignments; provided that this Deed will create a security interest in commercial tort claims only when this Deed is amended and re-authenticated to add a description of any relevant commercial tort claim to Schedule A hereto.
(c) The Borrower will file as soon as practicable following the date of this Deed (i) the Particulars of a Mortgage or Charge and a certified copy of this Deed with the Registrar of Companies in Bermuda and (ii) a UCC financing statement relating to the Collateral with the applicable office in the District of Columbia. Subject to the filing of continuation statements in respect of such financing statement required from time to time under the District of Columbia Uniform Commercial Code and, in the case of commercial tort claims, to the amendment and re-authentication of this Deed to update Schedule A hereto as contemplated by Section 5(d) below, (A) the Security Interest in and to the Collateral, to the extent the same can be perfected by filing of financing statements under the Uniform Commercial Code, constitutes and will constitute a perfected security interest therein, subject to no other security which is perfected by filing of financing statements, and (B) subject further to the Collateral Agent’s obtaining and maintaining possession or control over Collateral as to which a security interest can be perfected by possession or control under the Uniform Commercial Code, the Security Interest in and to the Collateral, to the extent the same can be perfected by possession or control under the Uniform Commercial Code, constitutes and will constitute a perfected first security interest therein, subject to no other Lien other than Permitted Liens; provided that continuation of such security interest in the proceeds of the Collateral is limited by the provisions of Sections 9-203, 9-315 and 9-322 of the Uniform Commercial Code. Provided that the Collateral Agent complies with the terms of this Deed, the provisions of this Deed are sufficient to cause the Collateral Agent to have and maintain control over each Account and all financial assets credited thereto within the meaning of the Uniform Commercial Code. The Lien upon the Collateral will, upon the filing of the Particulars of a Mortgage or Charge and a certified copy of this Deed with the Registrar of Companies in Bermuda, constitute a security interest in favor of the Collateral Agent for the benefit of the InvestorsSecured Parties which is senior to any other Lien (other than Permitted Liens), now existing or hereafter arising, under the laws of Bermuda.
(d) Upon delivery to the Collateral Agent of an agreement in each case except favor of the Collateral Agent in form and substance comparable to Annex 1 hereto by the applicable insurer, the provisions of this Deed and such other agreement will be sufficient to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a Lien on all of the Borrower’s right, title and interest in and to all reinsurance agreements described in such agreement, as executed and delivered, to the extent such may apply rights, title and interest relate to the repayment or reimbursement of a claim by the Borrower pursuant to such agreements covering any Insured Obligation in the Covered Portfolio, which Lien will be senior to any other Lien (other than any Permitted Liens) therein now existing or hereafter created.
(be) except with respect to Permitted Liens, there There is no financing statement statement, particulars of a mortgage or charge (or similar statement or instrument of registration under the law of any jurisdiction) naming the Borrower or any of its predecessors in interest as debtor now on file or registered in any public office covering evidencing any interest of any kind in Lien on the Collateral, or intended to cover any such interest that which has not been terminated terminated, and neither the Borrower nor any of its predecessors in interest has executed or released by the secured party named thereinfiled, and so long as any Notes remain outstanding this Deed remains in effect or any of the Secured Obligations of the Grantor remain unpaid, the Grantor Borrower will not execute and there will not be on file in any public office or file, any financing statement or particulars of a mortgage or charge (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to any of its right, title or interest in or to any of the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to of the Collateral Agent for the benefit of the Investors;Secured Parties granted and provided for in this Deed.
(cf) at the Grantor’s own expenseThe registered office, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief office executive offices and chief place of business of Grantor is the Borrower are located at 00000 Xx Xxxxxx Xxxx00 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx XxxxxXxxxxxxx, XX 00000. The Grantor 00, Bermuda, and the Borrower will not move its chief executive office and offices or its chief place of business except to such new location as the Borrower may establish in accordance with the last sentence of this Section 3(f). Originals of all material documents evidencing Collateral which are held by the Borrower and the only original books of account and records of the Borrower relating thereto are, and will continue to be (so long as any Secured Obligations are outstanding), kept at such chief executive office or at such new location as the Borrower may establish in accordance with the last sentence of this Section 3(f). The Borrower shall establish no such new location until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention so to do sodo, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent or the Administrative Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, reasonably satisfactory to the Collateral Agent and the Administrative Agent (including, without limitation, all action required by Section 5 hereto), to maintain the Lien of the Collateral Agent for the ratable benefit of the Secured Parties in the Collateral intended to be granted in full force and effect.
(g) The legal name of the Borrower is as set forth on the signature page hereto, and the Borrower shall not change such name, conduct its business in any name other than such name or take title to any Collateral in any name other than such name while this Deed remains in effect unless (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention so to do, setting forth such name or names and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new locationname or names, it shall have taken such action, reasonably satisfactory to the Collateral AgentAgent and the Administrative Agent (including, without limitation, all action required by Section 5 hereto), to maintain the Lien of the Collateral Agent for the benefit of the Secured Parties in the Collateral intended to be granted in full force and effect. Neither the Borrower nor any predecessor to its business and assets has ever had any name, or conducted business under any name in any jurisdiction, other than the Borrower’s name set forth on the signature page hereto and (ii) the Borrower’s predecessor names, Capital Global Underwriters Limited, ACE Capital Re Limited, ACE Capital Re International Ltd. and Assured Guaranty Re International Ltd.
(h) The Borrower shall xxxx its financial records as may be necessary or appropriate to evidence, protect and perfect the security interest of the Collateral Agent for the benefit of the Secured Parties in the Collateral and shall cause its financial statements to reflect such security interest in accordance with generally accepted and statutory accounting principles.
(i) The Borrower will not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or materially modify, compromise, settle, release, surrender or abandon the Collateral or any part thereof, or grant any material waiver, consent, extension or indulgence affecting rights of payment with respect thereto, other than (i) in the ordinary course of its business and in compliance with the provisions of Section 6.7 of the Credit Agreement or (ii) with the prior written consent of the Collateral Agent. The Borrower will not create, incur, assume or suffer to exist any Lien upon any of its right, title or interest in or to any of the Collateral other than the Lien of this Deed and Permitted Liens without the prior written consent of the Collateral Agent.
(j) The Collateral Agent is authorized (but is under no obligation) to make, upon five (5) Business Days’ notice to the Borrower (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be practical), any payments which in the opinion of the Collateral Agent, in favor the Administrative Agent or the Majority Lenders are necessary to discharge any Liens which have or may take priority over the Lien of this Deed other than Permitted Liens. The Borrower shall have no claim against the Collateral Agent or any Lender by reason of its decision not to make any payments or perform such obligations permitted under this Section. The Borrower shall repay to the Collateral Agent any sums paid by the Collateral Agent upon demand. Any sums paid and expenses incurred by the Collateral Agent pursuant to this paragraph shall bear interest at a rate per annum equal to the Default Rate and shall be payable upon demand. In the event that the Borrower claims, by written notice to the Collateral Agent received within the five (5) Business Days immediately following the giving of any notice by the Collateral Agent pursuant to the first sentence of this paragraph or, if any payment described therein shall have been made without notice, the five Business Days immediately following the giving of notice by the Collateral Agent of the Investorsmaking of such payment, that such payment is not necessary to discharge such Lien and to preserve the priority of the Lien of this Deed, and obtains a final determination by a court of competent jurisdiction confirming such claim in a proceeding in which the Collateral Agent has the opportunity to participate fully, the Collateral Agent will upon demand reimburse the Borrower for its reasonable expenses incurred under this paragraph.
(k) The Borrower will not assert against the Collateral Agent or any Secured Party any claim or defense which the Borrower may have against any obligor under the Collateral or any part thereof or any other Person with respect to the Collateral or any part thereof for so long as this Deed remains in effect.
(l) The Borrower will within the five (5) Business Days immediately following a written request therefor pay to the Collateral Agent the amount of any and all reasonable and validly incurred expenses, including, without limitation, the reasonable fees and expenses of its counsel and of agents, which the Collateral Agent may incur in connection with (i) the administration of this Deed, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Collateral Agent or the Secured Parties hereunder or (iv) the failure by the Borrower to perform or observe any of the provisions hereof.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of Tenant contained herein, in Lease No. 5 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for the benefit of the Senior Lenders Secured Party pursuant to this Agreement and the security interest granted to the Collateral Agent for the benefit of the Investors hereinany liens permitted under Lease No. 5, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by Tenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under Lease No. 5, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of Tenant to the Grantor Secured Party remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Tenant are as set forth in Schedule 1 and Tenant will not move its chief executive office or establish any other principal place of business except to such new location as Tenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as Tenant may establish in accordance with this Section 3(d). Tenant shall not move its chief executive office or establish any other principal place of business until (i) it Tenant shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. Tenant agrees that (i) all such property held by Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of Tenant is set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Tenant shall not (i) change such name without providing the Secured Party with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Party determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. Tenant is organized as a Maryland statutory trust. Subject to the terms and conditions of Lease No. 5, Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days’ notice to Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party’s opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in Lease No. 5 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. Tenant shall have no claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Tenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, Tenant shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the Secured Party, to be held pursuant to this Agreement.
(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under Lease No. 5, without the prior written consent of the Secured Party. Except as permitted under Lease No. 5, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party.
(j) Tenant shall not assert against the Secured Party any claim or defense which Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Tenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv) the failure by Tenant to perform or observe any of the provisions hereof.
(l) Tenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
Samples: Transaction Agreement (Senior Housing Properties Trust)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Guaranty and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Parties therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Parties.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain the Guaranty remains outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Parties hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Parties not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Secured Parties may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Parties (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Parties in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the Province of Ontario on the date hereof.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect without the consent of the Secured Parties. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 3 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in reasonable amounts approved by the Secured Parties, for the benefit of the Investors;
Debtor and the Secured Parties, (cii) at upon request by the Grantor’s own expenseSecured Parties, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Parties, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 4(g), the Secured Parties may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; and without payable on demand with interest at a rate per annum equal to 15%.
(h) Subject to the consent rights of the holders of the Senior Collateral AgentIndebtedness, the Grantor Debtor hereby assigns to the Secured Parties all of Debtor's right, title and interest in and to any and all monies which may become due and payable with respect to the Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Parties for application to amounts outstanding under the Note in accordance with the terms of the Note and, to the extent not provided therein, in such order as the Secured Parties shall determine.
(i) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Parties any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Parties harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Parties upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Parties.
Appears in 1 contract
Samples: General Subordinated Security Agreement (Tarpon Industries, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of Tenant contained herein, in the Amended Lease No. 2 or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinAmended Lease No. 2, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Amended Lease No. 2, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of Tenant to the Grantor Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each of the Entities comprising Tenant are as set forth in Schedule 1 and none of such Entities will not move its chief executive office or establish any other principal place of business except to such new location as such Entity may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each of the Entities comprising Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Entity may establish in accordance with this Section 3(d). None of the Entities comprising Tenant shall move its chief executive office or establish any other principal place of business until (i) it such Entity shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it such Entity shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. Tenant agrees that (i) all such property held by Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of each of the Entities comprising Tenant are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Tenant shall not (i) change such name without providing the Secured Parties with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, Tenant has not had any other name nor conducted business in any other name in any jurisdiction. The organizational structure of Tenant is as set forth in the preamble to this Agreement. Subject to the terms and conditions of the Amended Lease No. 2, Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties’ opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Amended Lease No. 2 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Amended Lease No. 2, without the prior written consent of the Secured Parties. Except as permitted under the Amended Lease No. 2, Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) Tenant shall not assert against the Secured Parties any claim or defense which Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by Tenant to perform or observe any of the provisions hereof.
(l) Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Guaranty and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party Representative therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party Representative.
(bc) except with respect to Permitted Liens, there There is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain the Guaranty remains outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party Representative hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 4(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party Representative not less than 30 days' prior written notice of its intention to do so, clearly describing such new location and providing such other in- formation in connection therewith as the Secured Party Representative may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party Representative (including, without limitation, all action required by Section 8 hereof), to maintain the security interest of the Secured Party Representative in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Debtor has no Collateral located outside of the Province of Ontario on the date hereof.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this Agreement remains in effect without the consent of the Secured Party Representative. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 3 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by insurers and in reasonable amounts approved by the Secured Party Representative, for the benefit of the Investors;
Debtor and the Secured Party Representative, (cii) at upon request by the Grantor’s own expenseSecured Party Representative, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party Representative, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 4(g), the Secured Party Representative may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; and without payable on demand with interest at a rate per annum equal to 15%.
(h) Subject to the consent rights of the holders of the Senior Collateral AgentIndebtedness, the Grantor Debtor hereby assigns to the Secured Party Representative all of Debtor's right, title and interest in and to any and all monies which may become due and payable with respect to the Collateral under any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, and shall cause any such insurance company to make payment directly to the Secured Party Representative for application to amounts outstanding under the Note in accordance with the terms of the Note and, to the extent not provided therein, in such order as the Secured Party Representative shall determine.
(i) The Debtor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(dk) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor Debtor will not move its chief executive office and chief place assert against the Secured Party Representative or the Note Holders any claim or defense which the Debtor may have against any seller of business until (i) it shall have given the Collateral or any part thereof or against any other Person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Party Representative and the Note Holders harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to the Secured Party Representative upon its request, in favor which may be made at any time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Investors, in the CollateralSecured Party Representative.
Appears in 1 contract
Samples: General Subordinated Security Agreement (Tarpon Industries, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Subtenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of such Subtenant contained herein or in any other document executed by such Subtenant in connection herewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinAmended Lease No. 4, the Grantor each Subtenant is, and as to the Collateral acquired from time to time after the date hereof, the Grantor hereof such Subtenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor such Subtenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by such Subtenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Amended Lease No. 4, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of such Subtenant to the Grantor Secured Parties remain unpaid, the Grantor such Subtenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each Subtenant are as set forth in Schedule 1 and such Subtenant will not move its chief executive office or establish any other principal place of business except to such new location as such Subtenant may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of such Subtenant’s Subleased Properties is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each Subtenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Subtenant may establish in accordance with this Section 3(d). No Subtenant shall move its chief executive office or establish any other principal place of business until (i) it such Subtenant shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it such Subtenant shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by such Subtenant to be used in connection with the operation or maintenance of each Subleased Property of such Subtenant, or any portion thereof, is located at each applicable Subleased Property or is in transit to such Subleased Property from the vendor thereof. Each Subtenant agrees that (i) all such property held by such Subtenant on the date hereof, once at each applicable Subleased Property, shall remain at such Subleased Property and (ii) all such property subsequently acquired by such Subtenant shall immediately upon acquisition be transferred to and remain at the applicable Subleased Property.
(f) Such Subtenant’s corporate name and organizational identification number are as set forth on Schedule 1 attached hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Each Subtenant agrees that it shall not (i) change such names without providing the Secured Parties with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Parties determine are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, no Subtenant has ever had any other name or conducted business in any other name in any jurisdiction. Each Subtenant’s organizational structure is as set forth on Schedule 1 attached hereto. Subject to the terms and conditions of the Amended Lease No. 4 and the Subleases, no Subtenant shall change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to the applicable Subtenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties’ opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Amended Lease No. 4 or any other document or agreement executed in connection therewith or herewith, upon the failure of Tenant to make such payments within the time permitted therein. No Subtenant shall have any claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). Each Subtenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Subtenant which owns such Collateral shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) No Subtenant shall sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Amended Lease No. 4, without the prior written consent of the Secured Parties. Except as permitted under the Amended Lease No. 4, no Subtenant shall create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) No Subtenant shall assert against the Secured Parties any claim or defense which such Subtenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) Each Subtenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by such Subtenant to perform or observe any of the provisions hereof.
(l) Each Subtenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of such Subtenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
Samples: Subtenant Security Agreement (Five Star Quality Care Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this General Security Agreement, as follows:
(a) except for the security interest granted This General Security Agreement is made with full recourse to the Senior Collateral Agent for Debtor and pursuant to and upon all the benefit warranties, representations, covenants, and agreements on the part of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors Debtor contained herein, in the Grantor Loan Agreement and otherwise made in writing in connection herewith or therewith.
(b) The Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from and for as long as the Secured Obligations remain unpaid the Debtor will not permit any lien, security interest, encumbrance new or additional lien or other right, title or interest of any person, and encumbrance on the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensCollateral.
(bc) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so So long as any Notes remain outstanding the Loan Agreement remains in effect or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any new or additional financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for.
(d) The chief executive office and chief place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until (i) it shall have given to the Secured Party not less than 30 days' prior written notice of its intention so to do, clearly describing such new location and providing such other information in connection therewith as the Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Secured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect.)
(e) Debtor has no Collateral located outside the State of New York.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral Agent in any other name while this General Security Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Loan Agreement, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workmen's compensation laws, by insurers and in amounts approved by the Secured Party, for the benefit of the Investors;
Debtor and the Secured Party, (cii) at upon request by the Grantor’s own expenseSecured Party, promptly deliver the Grantor will insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s 's specifications and requirements. Upon any failure of the debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party may at its option, and (ii) free without affecting any of its other rights or remedies provided herein or as a secured party under the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications to be made to the Collateral and clear the cost of all liens and encumbrances, except for either or both of which shall be a lien against the liens granted Collateral added to the amount of the indebtedness secured hereby and Permitted Liens; payable on demand with interest at a rate per annum equal to 15% per annum.
(h) The Debtor hereby assigns to the Secured Party all of Debtor's right, title and without interest in and to any and all moneys which may become due and payable with respect to the consent Collateral under any policy insuring the Collateral, including return of unearned premium, and shall cause any such insurance company to make payment directly to the Senior Secured Party for application as provided in the Loan Agreement.
(i) The Debtor will not use the Collateral Agent, in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Grantor Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon a substantial portion or all of the Collateral.
(k) The Debtor will not assert against the Secured Party any claim or defense which the Debtor may have against any seller of the Collateral or any part thereof or against any other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given person with respect to the Collateral Agent not less than 30 days’ prior written notice of its intention to do soor any part thereof.
(l) The Debtor will indemnify and hold the Secured Party harmless from and against any loss, clearly describing such new location liability, damage, costs and providing such other information in connection therewith as expenses whatsoever arising from the Collateral Agent may reasonably requestDebtor's use, and (ii) with respect to such new locationoperation, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest ownership or possession of the Collateral Agentor any part thereof.
(m) The Debtor will not enter into any agreement that is inconsistent with the Debtor's obligations under this General Security Agreement, in favor without the prior written consent of the Investors, in the CollateralSecured Party.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of the Tenant contained herein, in the Master Lease or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Security Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinMaster Lease, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, hereof the Grantor Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by the Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Master Lease, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of the Grantor Tenant to the Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor the Tenant are as set forth in SCHEDULE 1 -5- and the Tenant will not move its chief executive office or establish any other principal place of business except to such new location as the Tenant may establish in accordance with this SECTION 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in SCHEDULE 2. The originals of all documents evidencing Collateral and the only original books of account and records of the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as the Tenant may establish in accordance with this SECTION 3(d). The Tenant shall not move its chief executive office or establish any other principal place of business until (i) it the Tenant shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ ' prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it the Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by SECTION 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by the Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. The Tenant agrees that (i) all such property held by the Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by the Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The Tenant's corporate name and organizational identification number are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on SCHEDULE 2. The Tenant shall not (i) change such names without providing the Secured Parties with thirty (30) days' prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on SCHEDULE 1, the Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The Tenant is organized as a Maryland business trust. Subject to the terms and conditions of the Master Lease, the Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days' prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days' notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties' opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Master Lease or any other document or agreement executed in connection therewith or herewith, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this SECTION 3(g). The Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Master Lease, without the prior written consent of the Secured Parties. Except as permitted under the Master Lease, the Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) The Tenant shall not assert against the Secured Parties any claim or defense which the Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by the Tenant to perform or observe any of the provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of the Tenant's obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Debtor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Debtor contained herein, in the Notes and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit Security Interest of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinSecured Party therein, the Grantor Debtor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Debtor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Debtor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Secured Party (other than Permitted Liens).
(bc) except with respect to Permitted Liens, there There is no financing statement statement, assignment of trademark, or assignment of patent (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or or, to the knowledge of Debtor intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any the Notes remain outstanding or any of the Secured Obligations of the Grantor Debtor remain unpaid, the Grantor Debtor will not execute and there will not be on file in any public office any financing statement statement, assignment of trademark, or assignment of patent (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements statements, assignment of trademark, or assignment of patent filed or to be filed in respect of and covering the security interest Security Interest of the Secured Party hereby granted to the Collateral Agent and provided for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and with respect to Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and.
(d) the The chief executive office and chief place of business of Grantor the Debtor is located at 00000 Xx Xxxxxx Xxxxthe address of the Debtor listed on the signature page hereof, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor and the Debtor will not move its chief executive office and chief place of business except to such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Debtor and the only original books of account and records of the Debtor relating thereto are, and will continue to be, kept at such chief executive office or at such new location as the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until (i) it shall have given to the Collateral Agent Secured Party not less than 30 days’ ' prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 7 hereof), to maintain the security interest Security Interest of the Secured Party in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) Substantially all of the Collateral Agentis located inside the State of California or the State of Pennsylvania or other states in which inventory may be held on consignment.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such name, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto, during the past six years other than as set forth in Schedule 2 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the provisions of the Notes, keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers' compensation laws, by financially sound and reputable insurers and in amounts usually carried by similar businesses, for the benefit of the Debtor and the Secured Party, (ii) upon request by the Secured Party, promptly deliver the insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral in good condition at all times (normal wear and tear excepted). Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), the Secured Party may at its option and after 20 days' prior written notice to Debtor, and without affecting any of its other rights or remedies provided herein or as a secured party under the NYUCC, procure the insurance protection it deems necessary to be made to the Collateral and the cost of either or both of which shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with interest at a rate per annum equal to 8%.
(h) The Debtor will not use the Collateral in material violation of any statute or ordinance or applicable insurance policy and will promptly pay all material taxes and assessments levied against the Collateral; provided that the Debtor shall not be required to pay any such tax or assessment that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained.
(i) The Debtor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify (other than in the ordinary course of business) or abandon the Collateral or any material part thereof other than (i) sales of Inventory in the ordinary course of business, (ii) the disposition of obsolete or worn-out Equipment in the ordinary course of business, and (iii) the sale of Collateral where the proceeds of such sale are equal to or greater than the then outstanding principal amount and accrued interest on the Notes and the Notes are repaid in full directly from the purchaser as a condition to, and simultaneously with, the consummation of such sale.
(j) The Debtor will not assert against the Secured Party any claim or defense which the Debtor may have against any seller of the Collateral or any part thereof or against any other Person with respect to the Collateral or any part thereof.
(k) The Debtor will indemnify and hold the Secured Party harmless from and against any loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession of the Collateral or any part thereof other than liabilities arising as a result of Secured Party's gross negligence or willful misconduct.
(l) The Debtor will maintain the confidentiality of all customer lists and not sell or otherwise dispose of such lists except (i) that the Debtor shall deliver copies thereof to the Secured Party upon its request, which may be made at any time and from time to time after an Event of Default (as such term is defined in the Notes) and (ii) in accordance with Section 3(i) herein.
(m) In addition to, and not in limitation of, the foregoing, with respect to the Intellectual Property, the Debtor hereby represents and warrants:
(i) Debtor has the sole, full and clear title to the Trademarks shown on Schedule 2-A hereto for the goods and services covered by the registrations thereof and such registrations are valid and subsisting.
(ii) Debtor will perform all acts and execute all documents, to the extent reasonable, including, without limitation, assignments for security in form suitable for filing with the United States Patent and Trademark Office, substantially in the forms of Exhibits 1 and 2 hereof, respectively, requested by the Secured Party at any time to evidence, perfect, maintain, record and enforce the Secured Party's interest in the Patents and Trademarks or otherwise in furtherance of the provisions of this Agreement, and Debtor hereby authorizes the Secured Party to execute and file one or more financing statements (and similar documents) or copies thereof or of this Agreement with respect to the Intellectual Property signed only by the Secured Party.
(iii) None of the Trademarks have been abandoned or invalidated, and, except to the extent that the Secured Party, upon 10 days' prior written notice by the Debtors, shall consent, and except to the extent such Debtor has a valid business purpose for doing otherwise (so long as any action on the part of any such Debtor would not have a material adverse effect on Debtor's business), Debtor (either itself or through licensees) will continue to use the Trademarks on each and every trademark class of goods in order to maintain the Trademarks in full force free from any claim of abandonment for nonuse and Debtor will not (nor will it permit any licensee thereof to) do any act or knowingly omit to do any act whereby any Trademark may become abandoned or invalidated, and Debtor shall notify the Secured Party immediately if it knows of any reason or has reason to know that any pending application or issued Trademark may become abandoned or invalidated.
(iv) Debtor has the sole, full and clear title to each of the Patents shown on Schedule 2-B hereto and the issued Patents are subsisting. None of the Patents has been abandoned or dedicated, and, except to the extent that the Secured Party, upon 10 days' prior written notice by the Debtor, shall consent, and except to the extent such Debtor has a valid business purpose for doing otherwise (so long as any action on the part of any such Debtor would not have a material adverse effect on Debtor's business), Debtor will not do any act, or omit to do any act, whereby the Patents may become abandoned or dedicated and shall notify the Secured Party immediately if it knows of any reason or has reason to know that any pending application or issued Patent may become abandoned or dedicated.
(v) In no event shall Debtor, either itself or through any agent, employee, licensee or designee, (A) file an application for the registration of any Patent or Trademark with the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof or (B) file any assignment of any patent or trademark, which Debtor may acquire from a third party, with the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, unless Debtor shall promptly notify the Secured Party thereof, and, upon request of the Secured Party, execute and deliver any and all assignments, agreements, instruments, documents and papers as the Secured Party may reasonably request to evidence the Secured Party's interest in such Patent or Trademark and the goodwill and general intangibles of Debtor relating thereto or represented thereby, and Debtor hereby constitutes the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed, such power being coupled with an interest is irrevocable until the Secured Obligations are paid in full.
(vi) Except (i) to the extent that the Secured Party, upon prior written notice from Debtor, shall consent (which consent shall not be unreasonably withheld) or (ii) in accordance with Section 3(i) herein, Debtor will not assign, sell, mortgage, lease, transfer, pledge, hypothecate, grant a security interest in or lien upon, encumber, grant an exclusive or non-exclusive license (except in the ordinary course of business), or otherwise dispose of any of the Intellectual Property, and nothing in this Agreement shall be deemed a consent by the Secured Party to any such action except as expressly permitted herein.
(vii) As of the date hereof neither Debtor nor any affiliate or subsidiary thereof owns any Patents or Trademarks registered in, or the subject of pending applications in, the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, other than those described in Schedules 2-A and 2-B hereto.
(viii) Except to the extent Debtor has a valid business purpose for doing otherwise (so long as any action on the part of Debtor would not have a material adverse effect on Debtor's business), Debtor will take all necessary steps in any proceeding before the United States Patent and Trademark Office or any similar office or agency of the United States, any state or province thereof, any other country or any political subdivision thereof, to maintain each application and registration of the Trademarks and Patents, including, without limitation, filing of renewals, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings (except to the extent that dedication, abandonment or invalidation is permitted under paragraphs (ii) and (iii) hereof).
(ix) Debtor agrees that the Secured Party does not assume, and shall have no responsibility for, the payment of any sums due or to become due under any agreement or contract included in the Intellectual Property or the performance of any obligations to be performed under or with respect to any such agreement or contract by Debtor, and the Debtor hereby agrees to indemnify and hold the Secured Party harmless with respect to any and all claims by any person relating thereto.
(x) Debtor agrees that if it, or any affiliate or subsidiary thereof, learns of any use by any person of any term or design likely to cause confusion with any Trademark, it shall promptly notify the Secured Party of such use and, if requested by the Secured Party, shall join with the Secured Party, at the Secured Party's expense, in favor such action as the Secured Party, in its reasonable discretion may deem advisable for the protection of the InvestorsSecured Party's interest in and to such Trademarks.
(xi) All licenses of Trademarks and Patents which Debtor has granted to third parties are set forth in Schedule C hereto.
(xii) If Debtor shall acquire title to any new Trademarks or Patents, the provisions of this Agreement shall automatically apply thereto. Debtor shall promptly notify the Secured Party in writing of any rights to any new Trademarks or Patents acquired by Debtor after the date hereof and of any registrations issued or applications for registration made after the date hereof. Concurrently with the filing of an application for registration for any Trademarks or Patents, Debtor shall execute, deliver and record in all places where this Agreement is recorded an appropriate agreement, substantially in the form hereof, with appropriate insertions, or an amendment to this Agreement, in form and substance reasonably satisfactory to the CollateralSecured Party, pursuant to which Debtor shall grant a security interest to the extent of its interest in such registration as provided herein to the Secured Party.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Obligor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except This Agreement is made with full recourse to the Obligor and pursuant to and upon all the warranties, representations, covenants, and agreements on the part of the Obligor contained herein, in the Asset Purchase Agreement and otherwise made in writing in connection herewith or therewith.
(b) Except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders Secured Party and the security interest granted to the Collateral Agent for the benefit of the Investors hereinPermitted Liens, the Grantor Obligor is, and as to Collateral acquired from time to time after the date hereof, hereof the Grantor Obligor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, Person (other than Permitted Liens) and the Grantor Obligor shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted LiensSecured Party.
(bc) except with respect to Permitted Liens, there There is no financing statement other than the Permitted Liens (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that interest, which has not been terminated or released by the secured party named therein, therein and so long as any Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor Obligor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Secured Party hereby granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Obligor is located at the address of the Obligor listed on the signature page hereof, and the Obligor will not move its chief executive office and chief place of business without providing prior written notice to the Secured Party of not less than 30 days. The originals of all Assigned Agreements and all documents (as well as all duplicates thereof) evidencing all Receivables and all other contract rights or accounts and other property of the Obligor and the only original books of account and records of the Obligor relating thereto are, and will continue to be, kept at such chief executive office, or at such new location as the Obligor may establish
(e) The name of the Obligor is as set forth on the signature page hereto and the Obligor shall not change such name, conduct its business in any other name or take title to the Collateral Agent for in any other name while this Agreement remains in effect, without providing the benefit of Secured Party no less than 30 days notice and making such filings as the Investors;Secured Party shall reasonably request. The Obligor has never had any name, or conducted business under any name in any jurisdiction, other than its name set forth on the signature page hereto.
(cf) at At the GrantorObligor’s own expense, the Grantor will Obligor will: (i) keep the Collateral fully insured at all times with financially sound and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and to the same extent that like properties are customarily so insured by other entities engaged in the same or similar businesses similarly situated and keep adequate insurance at all times against liability on account of damage to persons and properties and under all applicable workers’ compensation laws, (iii) upon request by the Secured Party, promptly deliver the insurance policies or certificates thereof to the Secured Party, and (iii) keep the Collateral in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, .
(g) The Obligor will not use the Collateral in violation of any statute or ordinance or applicable insurance policy and will promptly pay all taxes and assessments levied against the Collateral.
(iih) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor The Obligor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory Inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment Equipment in the ordinary course of business; and.
(d) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to The Obligor will indemnify and hold the Secured Party harmless from and against any loss, liability, damage, costs and expenses whatsoever arising from the Obligor’s use, operation, ownership or possession of the Collateral Agent or any part thereof.
(j) The Obligor will not less than 30 days’ prior written notice of its intention enter into any agreement that is inconsistent with the Obligor’s obligations under this Agreement.
(k) If the Obligor transfer any assets to do soany subsidiary or affiliate now existing or hereafter formed, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new locationbefore so doing, it shall have taken cause such action, satisfactory person to sign a guaranty and security agreement covering the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the Investors, in the Collateralsecured obligations.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except for the security interest granted to the Senior Collateral Agent for the benefit of the Senior Lenders Noteholders herein, the interest and the security interest granted to the Collateral Agent for the benefit of the Investors hereinrights disclosed in Section 2.5 and as disclosed on Schedule 9.1, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or the Collateral Agent for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.Noteholders;
(b) except with respect to Permitted Liens, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Convertible Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsNoteholders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Lienshereby; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief executive office and chief place of business of Grantor Vyteris is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx 00-00 Xxxxxxx Xxxxx, XX 00000Fair Lawn, NJ 07410. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the InvestorsNoteholders, in the Collateral.; and
Appears in 1 contract
Samples: Security Agreement (Vyteris, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of the Tenant contained herein, in the Master Lease or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Parties pursuant to this Security Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinMaster Lease, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, hereof the Grantor Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Parties therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Parties. The lien granted in this Agreement by the Tenant to the Secured Parties in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the Master Lease, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of the Grantor Tenant to the Secured Parties remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Parties.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor the Tenant are as set forth in SCHEDULE 1 and the Tenant will not move its chief executive office or establish any other principal place of business except to such new location as the Tenant may establish in accordance with this SECTION 3(D). The location of each Facility comprising a portion of the Leased Property is as set forth in SCHEDULE 2. The originals of all documents evidencing Collateral and the only original books of account and records of the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as the Tenant may establish in accordance with this SECTION 3(D). The Tenant shall not move its chief executive office or establish any other principal place of business until (i) it the Tenant shall have given to the Collateral Agent Secured Parties not less than 30 ten (10) days’ ' prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Parties may reasonably request, and (ii) with respect to such new location, it the Tenant shall have taken such action, satisfactory to the Collateral AgentSecured Parties (including, without limitation, all action required by SECTION 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by the Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. The Tenant agrees that (i) all such property held by the Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by the Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The Tenant's corporate name and organizational identification number are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on SCHEDULE 2. The Tenant shall not (i) change such names without providing the Secured Parties with thirty (30) days' prior written notice and making all filings and taking all such other actions as the Secured Parties determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on SCHEDULE 1, the Tenant has not ever had any other name nor conducted business in any other name in any jurisdiction. The Tenant is organized as a Maryland business trust. Subject to the terms and conditions of the Master Lease, the Tenant shall not change its organizational structure or jurisdiction of organization without giving at least thirty (30) days' prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days' notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Parties' opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the Master Lease or any other document or agreement executed in connection therewith or herewith, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Parties by reason of its decision not to make any payments or perform such obligations permitted under this SECTION 3(G). The Tenant shall repay to the Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the Secured Parties pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Tenant shall promptly deliver such Instrument to the Secured Parties, appropriately endorsed to the order of the Secured Parties, to be held pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the Master Lease, without the prior written consent of the Secured Parties. Except as permitted under the Master Lease, the Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Parties.
(j) The Tenant shall not assert against the Secured Parties any claim or defense which the Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Parties the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Parties may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Parties hereunder and under such other agreements or (iv) the failure by the Tenant to perform or observe any of the provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Parties in any way relating to or arising out of this Agreement or arising out of the Tenant's obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each The Grantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Except for the security interest granted to the Senior Collateral Agent for the benefit of the holders of the Senior Lenders Notes and except for the security interest granted to the Collateral Agent for the benefit of the Investors Holders herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders or Holders;
(b) Except with respect to the Collateral Agent security interest granted for the benefit of the Investors, in each case except as such may apply to any Permitted Liens.
(b) except with respect to Permitted Liensholders of the Senior Notes, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Subordinated Convertible Notes remain outstanding or any of the Secured Obligations of the Grantor remain unpaid, the Grantor will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the InvestorsHolders;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Lienshereby; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and;
(d) the chief executive office and chief place of business of Grantor Amber is located at 00000 Xx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxx, Xxxxx 0000xx Xxxxx, Xxx XxxxxXxxxxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the InvestorsHolders, in the Collateral; and
(e) the Grantor will not amend its certificate of incorporation or other governing documents to change its name or state of incorporation.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor The Tenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) except Each of the warranties and representations of the Tenant contained herein, in the New Lease or in any other document executed in connection herewith or therewith are true and correct on the date hereof.
(b) Except for the security interest lien granted to the Senior Collateral Agent for Secured Party pursuant to this Security Agreement and any liens permitted under the benefit of the Senior Lenders and the security interest granted to the Collateral Agent for the benefit of the Investors hereinNew Lease, the Grantor Tenant is, and as to the Collateral acquired from time to time after the date hereof, hereof the Grantor Tenant will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any personPerson, except for the security interest of the Secured Party therein, and the Grantor Tenant shall defend the Collateral against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to the Senior Secured Party. The lien granted in this Agreement by the Tenant to the Secured Party in the Collateral Agent for the benefit is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Senior Lenders or the Collateral Agent for the benefit Collateral, and no consent is required of the Investors, in each case except as any Person to effect such may apply to any Permitted Lienslien which has not been obtained.
(bc) except with respect to Permitted LiensExcept as permitted under the New Lease, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of any kind in the Collateral, or intended so to cover any such interest that be, which has not been terminated or released by the secured party named thereinterminated, and so long as any Notes remain outstanding this Agreement remains in effect or any of the Obligations or any obligations of any Affiliated Person of the Grantor Tenant to the Secured Party remain unpaid, the Grantor Tenant will not execute and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investors;
(c) at the Grantor’s own expense, the Grantor will keep the Collateral (i) in good condition at all times (normal wear and tear excepted) and maintain same in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; andSecured Party.
(d) the The chief executive office and chief the principal place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor each of the Entities comprising the Tenant are as set forth in Schedule 1 and neither of such Entities will not move its chief executive office or establish any other principal place of business except to such new location as such Entity may establish in accordance with this Section 3(d). The location of each Facility comprising a portion of the Leased Property is as set forth in Schedule 2. The originals of all documents evidencing Collateral and the only original books of account and records of each of the Entities comprising the Tenant relating thereto are, and will continue to be, kept at such chief executive office or the applicable Facility, as the case may be, or at such new location as such Entity may establish in accordance with this Section 3(d). Neither of the Entities comprising the Tenant shall move its chief executive office or establish any other principal place of business until (i) it such Entity shall have given to the Collateral Agent Secured Party not less than 30 ten (10) days’ prior written notice of its intention to do so, which notice shall clearly describing describe such new location and providing provide such other information in connection therewith as the Collateral Agent Secured Party may reasonably request, and (ii) with respect to such new location, it such Entity shall have taken such action, satisfactory to the Collateral AgentSecured Party (including, without limitation, all action required by Section 5), to maintain the security interest of the Collateral Agent, in favor of the Investors, Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by the Tenant to be used in connection with the operation or maintenance of the Leased Property, or any portion thereof, is located at each applicable Property or is in transit to such Property from the vendor thereof. The Tenant agrees that (i) all such property held by the Tenant on the date hereof, once at each applicable Property, shall remain at such Property and (ii) all such property subsequently acquired by the Tenant shall immediately upon acquisition be transferred to and remain at the applicable Property.
(f) The corporate name and organizational identification number of each of the Entities comprising the Tenant are as set forth on the signature page hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Neither of the Entities comprising the Tenant shall (i) change such name without providing the Secured Party with thirty (30) days’ prior written notice and making all filings and taking all such other actions as the Secured Party determines are necessary or appropriate to continue or perfect the security interest granted hereunder, (ii) change its corporate organizational number, nor (iii) conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, neither of the Entities comprising the Tenant has ever had any other name nor conducted business in any other name in any jurisdiction. Each of the Entities comprising the Tenant is formed as a Maryland limited liability company. Subject to the terms and conditions of the New Lease, neither of the Entities comprising the Tenant shall change its organizational structure or jurisdiction of formation without giving at least thirty (30) days’ prior written notice thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to make, upon ten (10) Business Days’ notice to the Tenant (except in the case of exigent circumstances, in which circumstances upon such notice, if any, as may then be reasonably practical), any payments which in the Secured Party’s opinion are necessary to:
(i) discharge any liens which have or may take priority over the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred to in the New Lease or any other document or agreement executed in connection therewith or herewith, upon the failure of the Tenant to make such payments within the time permitted therein. The Tenant shall have no claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section 3(g). The Tenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an Instrument, the Tenant shall promptly deliver such Instrument to the Secured Party, appropriately endorsed to the order of the Secured Party, to be held pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the registration, if any, of, dispose of, attempt to dispose of, or substantially modify or abandon the Collateral or any material part thereof, other than as permitted under the New Lease, without the prior written consent of the Secured Party. Except as permitted under the New Lease, the Tenant shall not create, incur, assume or suffer to exist any lien upon any of the Collateral without the prior written consent of the Secured Party.
(j) The Tenant shall not assert against the Secured Party any claim or defense which the Tenant may have against any seller of the Collateral or any part thereof or against any Person with respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv) the failure by the Tenant to perform or observe any of the provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of the Tenant’s obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. 9.1 Each Grantor Party hereby represents, warrants and covenantswarrants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, (as applicable) to the other Party as follows:
(a) except for Such Party is a corporation duly organized, validly existing and in good standing under the security interest granted to the Senior Collateral Agent for the benefit laws of the Senior Lenders jurisdiction of its incorporation or organization, is qualified to do business and is in good standing as a foreign corporation or limited liability company in each jurisdiction in which the security interest granted to the Collateral Agent for the benefit conduct of the Investors herein, the Grantor is, and as to Collateral acquired from time to time after the date hereof, the Grantor will be, the owner of all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of any person, and the Grantor shall defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Senior Collateral Agent for the benefit of the Senior Lenders its business or the Collateral Agent for the benefit ownership of the Investors, in each case except as its properties requires such may apply qualification and failure to any Permitted Liens.have such qualification would prevent it from performing its obligations under this Agreement;
(b) except with respect to Permitted LiensThe execution, there is no financing statement delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate or limited liability company action and do not and will not (or similar statement or instrument of registration under the law i) violate any provision of any jurisdiction) now on file law, rule, regulation, order, writ, judgment, injunction, decree, determination or registered award presently in any public office covering any interest of any kind in the Collateral, or intended effect having applicability to cover any such interest that has not been terminated or released by the secured party named therein, and so long as any Notes remain outstanding it or any provision of the Obligations of the Grantor remain unpaidits charter, the Grantor will not execute and there will not be on file in operating agreement or bylaws; or (ii) conflict with or constitute a default under any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating other agreement to the Collateral, except financing statements filed or to be filed in respect of and covering the security interest hereby granted to the Collateral Agent for the benefit of the Investorswhich such Party is a party;
(c) at This Agreement has been duly executed by such Party and is (assuming valid execution and delivery of the Grantor’s own expenseAgreement by the other Party) a legal, valid and binding obligation of such Party, enforceable against it in accordance with the Grantor will keep the Collateral terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in good condition a proceeding in equity or at law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that would prevent such Party from performing its obligations under or complying with the terms of this Agreement, nor shall such Party undertake any such obligation during the Agreement Term;
(e) Except as set forth on Schedule 5.1(e) by OGX, such Party has obtained all times authorizations, consents and approvals, governmental or otherwise, necessary for the execution and delivery of this Agreement by such Party, and to otherwise perform such Party’s obligations under this Agreement (normal wear except for Regulatory Approvals to be sought pursuant to this Agreement);
(f) Except as set forth on Schedule 5.1(f)(i) by OGX or Schedule 5.1(f)(ii) by Teva, neither Party, nor any of its Affiliates, are a party to, or are otherwise bound by, any written contract that will result in any person or entity obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other Party’s rights under this Agreement;
(g) In the course of the Development of Licensed Products, such Party has not (to its Knowledge) used prior to the Effective Date and tear exceptedshall not knowingly use, during the Agreement Term, any employee, agent or independent contractor who has been debarred by any Regulatory Authority or, to such Party’s Knowledge, is the subject of debarment proceedings by a Regulatory Authority; and
(h) and maintain same Such Party shall perform its obligations hereunder in accordance with all manufacturer’s specifications and requirements, and (ii) free and clear of all liens and encumbrances, except for the liens granted hereby and Permitted Liens; and without the consent of the Senior Collateral Agent, the Grantor will not sell, transfer, change the registration, if any, dispose of, attempt to dispose of, substantially modify or abandon the Collateral or any part thereof other than sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment in the ordinary course of business; and
(d) the chief office and chief place of business of Grantor is located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The Grantor will not move its chief executive office and chief place of business until (i) it shall have given to the Collateral Agent not less than 30 days’ prior written notice of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Collateral Agent, to maintain the security interest of the Collateral Agent, in favor of the Investors, in the Collateralapplicable Laws.
Appears in 1 contract
Samples: Collaboration and License Agreement (Oncogenex Pharmaceuticals, Inc.)
