GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows: (a) 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 of the Note Holder therein, the Debtor is, and as to Collateral acquired from time to time after the date hereof the 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 (other than Permitted Liens) and the Debtor 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 Note Holder. (c) 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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Note Holders 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 Note Holders 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 Note Holders may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effect. (e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto. (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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%. (h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business. (k) The Debtor will not assert against the Note Holders or any Note Holder 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. (l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders. (o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: General Security Agreement (Bridgeline Software, Inc.), General Security Agreement (Bridgeline Software, Inc.)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at such time, such Lien Grantor is made with full recourse a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization of which such Lien Grantor shall on or prior to such time have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests owned by such Lien Grantor on the date hereof the Debtor will beof delivery of such Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a Securities Intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests owned by such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests owned by such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest owned by such Lien Grantor.
(d) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at each such time, (i) no financing statement (statement, security agreement, mortgage or similar statement or equivalent document or instrument covering all or part of registration under the law of any jurisdiction) now Collateral owned by such Lien Grantor is on file or registered of record in any public office covering any interest jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the Control of any kind other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that, when the actions which are required to be taken in order to create and perfect a Pledge (make the Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, as disclosed in writing to the Collateral Agent or intended its counsel on or prior to cover such date by any NNL Company or its counsel, have been taken, then at such interesttime such Pledge (i) will have been validly created, which has not been terminated or released by the secured party named therein and (ii) attaches to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so long as the Notes remain outstanding or any of attached, will secure all the Secured Obligations of the Debtor remain unpaid, the Debtor such Lien Grantor and (iv) will not execute constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and there will not be on file in any public office any financing statement (or similar statement or instrument rights of registration under the law of any jurisdiction) or statements relating to the Collateralothers therein, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(df) The chief executive office Each Lien Grantor represents and chief place of business of warrants, on each Drawdown Date, that on such date 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 Pledges (i) it shall have given been validly created, (ii) attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, secure all the Note Holders not less than 30 days' prior written notice Secured Obligations of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Lien Grantor and (iiiv) will constitute a perfected security interests in the Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that (i) if this representation and warranty shall not be true on any Drawdown Date with respect to any Equity Interests as a result of the Collateral Agent not performing in a timely manner its obligations under Section 5(d) with respect to such new locationEquity Interests prior to such Drawdown Date, it the representation with respect to such Equity Interests shall be deemed required to be made not on such Drawdown Date but on the fifteenth Business Day following compliance by the Collateral Agent with such Section with respect to such Equity Interests and (ii) if the Collateral Agent shall have taken determined in its good faith discretion that creating or perfecting a security interest in any Collateral (making such actionsecurity interest enforceable against the Lien Grantor and third parties) by the date this representation and warranty would otherwise be required to be made is impossible, satisfactory impracticable or unreasonably burdensome, the Collateral Agent may, in its good faith discretion, consent to a waiver of compliance with this representation and warranty on the Note Holders date this representation and warranty would otherwise be required to be made (includingwhich waiver (x) may at the option of the Collateral Agent be limited in duration, (y) shall in any event be granted and shall be unlimited in duration if such Collateral is De Minimus Collateral). "DE MINIMUS COLLATERAL" means, at any Drawdown Date, any Equity Interests so long as such Equity Interests, together with all other Equity Interests that are proposed to constitute "De Minimus Collateral" on such Drawdown Date, constitute the Equity Interests of Persons that (together with their consolidated subsidiaries, without limitation, all action required by Section 7 hereof), to maintain duplication) in the security interest aggregate have consolidated revenues that are less than 5% of the Note Holders in the Receivables intended to be granted at all times fully perfected consolidated revenues of NNL and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such nameits Subsidiaries, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 most recent audited consolidated financial statements of the Notes, keep the Collateral fully insured at all times with financially sound NNL and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and its consolidated subsidiaries delivered to the same extent that like properties are customarily so insured by Banks or made publicly available. Without limiting any other entities engaged obligations of any Lien Grantor set forth 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g)Agreement, each Note Holder may at Lien Grantor agrees that it will use its option, and without affecting any of its other rights or remedies provided herein or as a secured party under commercially reasonable efforts to ensure that the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications 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 18%.
(h) The Debtor hereby assigns to the Note Holders all of Debtor's right, title and interest in and to any and all moneys which may become due and payable Pledges with respect to the any Equity Interests that constitute De Minimus Collateral under any policy insuring the Collateral are validly created and perfected (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 Note Holder 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 Note Holders 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 made enforceable against the CollateralLien Grantor and third parties).
(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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Foreign Pledge Agreement (Nortel Networks Corp), Pledge Agreement (Nortel Networks LTD)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at such time, such Lien Grantor is made with full recourse a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization of which such Lien Grantor shall have on or prior to such time have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all Pledged Equity Interests at such time have been validly issued and are fully paid. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests of such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest of such Lien Grantor with respect thereto.
(d) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at each such time, (i) no financing statement (statement, security agreement, mortgage or similar statement or equivalent document or instrument covering all or part of registration under the law of any jurisdiction) now Collateral owned by such Lien Grantor is on file or registered of record in any public office covering any interest jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any kind other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period that, when the actions which are required to be taken in order to create and perfect a Pledge (make the Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, as disclosed in writing to the Collateral Agent or intended its counsel on or prior to cover such date by any NNL Company or its counsel, have been taken, then at such interesttime such Pledge (i) will have been validly created, which has not been terminated or released by the secured party named therein and (ii) attach to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so long as the Notes remain outstanding or any of attached, will secure all the Secured Obligations of the Debtor remain unpaid, the Debtor such Lien Grantor and (iv) will not execute constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and there will not be on file in any public office any financing statement (or similar statement or instrument rights of registration under the law of any jurisdiction) or statements relating to the Collateralothers therein, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(df) The chief executive office Each Lien Grantor represents and chief place of business of warrants, on each Drawdown Date, that, on such date, 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 Pledges (i) it shall have given to the Note Holders 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 Note Holders may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holdersbeen validly created, (ii) upon request by the Note Holdersattached to each item of such Collateral on such date (or, promptly deliver the insurance policies or certificates thereof to the Note Holdersif such Lien Grantor first obtains rights thereto on a later date, and on such later date), (iii) keep when so attached, secure all the Secured Obligations of such Lien Grantor and (iv) will constitute a perfected security interests in the Collateral in good condition at owned by such Lien Grantor prior to all times (normal wear Liens and tear excepted) and maintain same in accordance with all manufacturer's specifications and requirements. Upon any failure rights of the Debtor to comply with its obligations pursuant to this Section 3(g)others therein, each Note Holder may at its option, and without affecting any of its other rights or remedies except Permitted Liens; 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 that if the Collateral and the cost of either Agent shall have determined in its good faith discretion that creating or both of which shall be perfecting a lien security interest in any Collateral (making such security interest enforceable against the Collateral added to the amount of the indebtedness secured hereby Lien Grantor and payable on demand with interest at a rate per annum equal to 18%.
(hthird parties) The Debtor hereby assigns to the Note Holders all of Debtor's rightby such Drawdown Date is impossible, title and interest in and to any and all moneys which may become due and payable with respect to impracticable or unreasonably burdensome, 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 Note Holder for application to amounts outstanding under the Notes in accordance with the terms of the Notes and, to the extent not provided thereinAgent may, in such order as the Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.good faith
Appears in 2 contracts
Samples: Pledge Agreement (Nortel Networks LTD), Pledge Agreement (Nortel Networks Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at such time, such Lien Grantor is made with full recourse a corporation duly organized, incorporated, amalgamated or continued, as the case may be, and validly existing under the laws of its jurisdiction of organization, incorporation, amalgamation or continuance, as the case may be, of which such Lien Grantor shall on or prior to such date have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests in Material Subsidiaries owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests owned by such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests owned by such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest owned by such Lien Grantor.
(d) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at such time (i) no financing statement (statement, financing change statement, security agreement, mortgage or similar statement or equivalent document or instrument covering all or part of registration under the law of any jurisdiction) now Collateral owned by such Lien Grantor is on file or registered of record in any public office covering any interest jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any kind other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that, when the actions which are required to be taken in order to create and perfect a Pledge (make this Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, including recording of the Pledge on the stock certificates of the Collateral, or intended on the stock ledgers of the issuers thereof and the delivery of the stock certificates evidencing the Collateral, have been taken, then at such time such Pledge (i) will have been validly created, (ii) attaches to cover any each item of such interestCollateral on such date (or, which has not been terminated or released by the secured party named therein and if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so long as the Notes remain outstanding or any of attached, will secure all the Secured Obligations of the Debtor remain unpaid, the Debtor such Lien Grantor and (iv) will not execute constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and there will not be on file in any public office any financing statement (or similar statement or instrument rights of registration under the law of any jurisdiction) or statements relating to the Collateralothers therein, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(df) The chief executive office Each Lien Grantor represents and chief place of business of warrants, on each Drawdown Date, that on such date 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 Pledges (i) it shall have given been validly created, (ii) attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, secure all the Note Holders not less than 30 days' prior written notice Secured Obligations of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Lien Grantor and (iiiv) will constitute a perfected security interests in the Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that (i) if this representation and warranty shall not be true on any Drawdown Date with respect to any Equity Interests as a result of the Collateral Agent not performing in a timely manner its obligations under Section 5(d) with respect to such new locationEquity Interests prior to such Drawdown Date, it the representation with respect to such Equity Interests shall be deemed required to be made not on such Drawdown Date but on the fifteenth Business Day following compliance by the Collateral Agent with such Section with respect to such Equity Interests and (ii) if the Collateral Agent shall have taken determined in its good faith discretion that creating or perfecting a security interest in any Collateral (making such actionsecurity interest enforceable against the Lien Grantor and third parties) by such Drawdown Date is impossible, satisfactory impracticable or unreasonably burdensome, the Collateral Agent may, in its good faith discretion, consent to a waiver of compliance with this representation and warranty on such Drawdown Date (which waiver (x) may at the Note Holders option of the Collateral Agent be limited in duration, (includingy) shall in any event be granted and be unlimited in duration if such Collateral is De Minimus Collateral). "DE MINIMUS COLLATERAL" means, at any Drawdown Date, any Equity Interests so long as such Equity Interests, together with all other Equity Interests that are proposed to constitute "De Minimus Collateral" on such Drawdown Date, constitute the Equity Interests of Persons that (together with their consolidated subsidiaries, without limitation, all action required by Section 7 hereof), to maintain duplication) in the security interest aggregate have consolidated revenues that are less than 5% of the Note Holders in the Receivables intended to be granted at all times fully perfected consolidated revenues of NNL and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such nameits Subsidiaries, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 most recent audited consolidated financial statements of the Notes, keep the Collateral fully insured at all times with financially sound NNL and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and its consolidated subsidiaries delivered to the same extent that like properties are customarily so insured by Banks or made publicly available. Without limiting any other entities engaged obligations of any Lien Grantor set forth 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g)Agreement, each Note Holder may at Lien Grantor agrees that it will use its option, and without affecting any of its other rights or remedies provided herein or as a secured party under commercially reasonable efforts to ensure that the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications 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 18%.
(h) The Debtor hereby assigns to the Note Holders all of Debtor's right, title and interest in and to any and all moneys which may become due and payable Pledges with respect to the any Equity Interests that constitute De Minimus Collateral under any policy insuring the Collateral are validly created and perfected (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 Note Holder 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 Note Holders 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 made enforceable against the CollateralLien Grantor and third parties).
(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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Foreign Pledge Agreement (Nortel Networks LTD), Foreign Pledge Agreement (Nortel Networks Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor Each Subtenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) 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 Each of the Debtor warranties and representations of such Subtenant contained herein, herein or in the Note and otherwise made in writing any other document executed by such Subtenant in connection herewith or therewithare true and correct on the date hereof.
(b) Except for the security interest of lien granted to the Note Holder thereinSecured Parties pursuant to this Agreement and any liens permitted under the Amended Lease No. 2, the Debtor each Subtenant is, and as to the Collateral acquired from time to time after the date hereof the Debtor 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 Person (other than Permitted Liens) Person, except for the security interest of the Secured Parties therein, and the Debtor such Subtenant 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 Note HolderSecured Parties. The lien granted in this Agreement by such Subtenant to the Secured Parties in the Collateral is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Collateral, and no consent is required of any Person to effect such lien which has not been obtained.
(c) There Except 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 interestbe, which has not been terminated or released by the secured party named therein terminated, and so long as the 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 Secured Obligations of the Debtor Parties remain unpaid, the Debtor 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 (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted LiensSecured Parties.
(d) The chief executive office and chief the principal place of business of the Debtor each Subtenant is located at the address of the Debtor listed as set forth on the signature page hereof, Schedule 1 and the Debtor such Subtenant will not move its chief executive office and chief nor establish any other principal place of business except to such new location as the Debtor such Subtenant may establish in accordance with the last sentence of 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 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 Collateral and the only original books of account and records of the Debtor each Subtenant relating thereto are, and will continue to be, kept at such chief executive officeoffice or the applicable Facility, as the case may be, or at such new location as the Debtor such Subtenant may establish in accordance with the last sentence of this Section 3(d). The Debtor No Subtenant shall move its chief executive office or establish no such new location any other principal place of business until (i) it such Subtenant shall have given to the Note Holders 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 Note Holders Secured Parties may reasonably request, and (ii) with respect to such new location, it such Subtenant shall have taken such action, satisfactory to the Note Holders Secured Parties (including, without limitation, all action required by Section 7 hereof5), to maintain the security interest of the Note Holders Secured Parties in the Receivables intended to be granted at all times fully perfected and in full force and effectCollateral.
(e) The Debtor has no Collateral 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 outside of locations set forth 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 Schedule 1 annexed heretothe 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) The Such Subtenant’s corporate name of the Debtor is and organizational identification number are as set forth on Schedule 1. The name under which each of the signature page hereto and the Debtor Facilities is operated is set forth on Schedule 2. Each Subtenant agrees that it shall not (i) change such namenames 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 the any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. The Debtor Subtenant has never ever had any name, other name or conducted business under in any other name in any jurisdiction, other than its name . Each Subtenant’s organizational structure is as set forth on Schedule 1. Subject to the signature page heretoterms and conditions of the Amended Lease No. 2 and the Subleases, during no Subtenant shall change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the past six years other than as set forth in Schedule 2 annexed heretoSecured Parties.
(g) At The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to the Debtor's own expenseapplicable 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 Debtor will: Secured Parties’ opinion are necessary to:
(i) without limiting discharge any liens which have or may take priority over 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 Note Holders, for the benefit of the Debtor and the Note Holders, lien hereof; and
(ii) upon request by the Note Holders, promptly deliver pay all premiums payable on the insurance policies referred to in the Amended Lease No. 2 or certificates thereof to any other document or agreement executed in connection therewith or herewith, upon the Note Holders, 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. Upon any failure of Tenant to make such payments within the Debtor time permitted therein. No Subtenant shall have any claim against the Secured Parties by reason of its decision not to comply with its make any payments or perform such obligations pursuant to permitted under this Section 3(g), each Note Holder may at its option, and 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 . Each Subtenant shall repay to the Collateral Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the cost of either or both of which Secured Parties pursuant to this paragraph shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with bear interest at a rate per annum equal to 18%the Overdue Rate.
(h) The Debtor hereby assigns 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 Note Holders all of Debtor's rightSecured Parties, title and interest in and to any and all moneys which may become due and payable with respect appropriately endorsed 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 Note Holder for application to amounts outstanding under the Notes in accordance with the terms order of the Notes andSecured Parties, to the extent not provided therein, in such order as the Note Holders shall determinebe held pursuant to this 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) The Debtor will not 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 thereof, other than sales as permitted under the Amended Lease No. 2, without the prior written consent of Inventory in the ordinary course Secured Parties. Except as permitted under the Amended Lease No. 2, no Subtenant shall create, incur, assume or suffer to exist any lien upon any of business and the disposition Collateral without the prior written consent of obsolete or worn-out Equipment in the ordinary course of businessSecured Parties.
(kj) The Debtor will not No Subtenant shall assert against the Note Holders or any Note Holder Secured Parties any claim or defense which the Debtor such Subtenant 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) 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) The Debtor will Each Subtenant shall indemnify and hold harmless the Note Holders and any Note Holder harmless Secured Parties from and against any lossand all liabilities, liabilityobligations, damagelosses, costs damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and expenses nature 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its request, which may be made at imposed on, incurred by or asserted against the Secured Parties in any time and from time way relating to time after an Event or arising out of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's this Agreement or arising out of such Subtenant’s obligations under this Agreement, without any other documents contemplated by or referred to herein or therein or the prior written consent transactions contemplated hereby or thereby or the enforcement of any of the Note Holdersterms hereof or of any such other documents.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Subtenant Security Agreement (Five Star Quality Care Inc), Subtenant Security Agreement (Five Star Quality Care Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at such time, such Lien Grantor is made with full recourse a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization of which such Lien Grantor shall on or prior to such time have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests owned by such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests owned by such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest owned by such Lien Grantor.
(d) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at each such time, (i) no financing statement (statement, security agreement, mortgage or similar statement or equivalent document or instrument covering all or part of registration under the law of any jurisdiction) now Collateral owned by such Lien Grantor is on file or registered of record in any public office covering any interest jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any kind other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that, when the actions which are required to be taken in order to create and perfect a Pledge (and make the Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, as disclosed in writing to the Collateral Agent or intended its counsel on or prior to cover such date by any NNL Company or its counsel, have been taken, then at such interesttime such Pledge (i) will have been validly created, which has not been terminated or released by the secured party named therein and (ii) attaches to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so long as the Notes remain outstanding or any of attached, will secure all the Secured Obligations of the Debtor remain unpaid, the Debtor such Lien Grantor and (iv) will not execute constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and there will not be on file in any public office any financing statement (or similar statement or instrument rights of registration under the law of any jurisdiction) or statements relating to the Collateralothers therein, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(df) The chief executive office Each Lien Grantor represents and chief place of business of warrants, on each Drawdown Date, that on such date 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 Pledges (i) it shall have given been validly created, (ii) attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, secure all the Note Holders not less than 30 days' prior written notice Secured Obligations of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Lien Grantor and (iiiv) will constitute a perfected security interests in the Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that (i) if this representation and warranty shall not be true on any Drawdown Date with respect to any Equity Interests as a result of the Collateral Agent not performing in a timely manner its obligations under Section 5(c) with respect to such new location, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.Equity
Appears in 2 contracts
Samples: Foreign Pledge Agreement (Nortel Networks LTD), Foreign Pledge Agreement (Nortel Networks Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor Each Subtenant represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) 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 Each of the Debtor warranties and representations of such Subtenant contained herein, herein or in the Note and otherwise made in writing any other document executed by such Subtenant in connection herewith or therewithare true and correct on the date hereof.
(b) Except for the security interest of lien granted to the Note Holder thereinSecured Parties pursuant to this Agreement and any liens permitted under the Amended Lease No. 3, the Debtor each Subtenant is, and as to the Collateral acquired from time to time after the date hereof the Debtor 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 Person (other than Permitted Liens) Person, except for the security interest of the Secured Parties therein, and the Debtor such Subtenant 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 Note HolderSecured Parties. The lien granted in this Agreement by such Subtenant to the Secured Parties in the Collateral is not prohibited by and does not constitute a default under any agreements or other instruments constituting a part of the Collateral, and no consent is required of any Person to effect such lien which has not been obtained.
(c) There Except 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 interestbe, which has not been terminated or released by the secured party named therein terminated, and so long as the 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 Secured Obligations of the Debtor Parties remain unpaid, the Debtor 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 (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted LiensSecured Parties.
(d) The chief executive office and chief the principal place of business of the Debtor is located at the address of the Debtor listed on the signature page hereof, each Subtenant are as set forth in Schedule 1 and the Debtor such Subtenant will not move its chief executive office and chief or establish any other principal place of business except to such new location as the Debtor such Subtenant may establish in accordance with the last sentence of 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 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 Collateral and the only original books of account and records of the Debtor each Subtenant relating thereto are, and will continue to be, kept at such chief executive officeoffice or the applicable Facility, as the case may be, or at such new location as the Debtor such Subtenant may establish in accordance with the last sentence of this Section 3(d). The Debtor No Subtenant shall move its chief executive office or establish no such new location any other principal place of business until (i) it such Subtenant shall have given to the Note Holders 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 Note Holders Secured Parties may reasonably request, and (ii) with respect to such new location, it such Subtenant shall have taken such action, satisfactory to the Note Holders Secured Parties (including, without limitation, all action required by Section 7 hereof5), to maintain the security interest of the Note Holders Secured Parties in the Receivables intended to be granted at all times fully perfected and in full force and effectCollateral.
(e) The Debtor has no Collateral 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 outside of locations 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 annexed attached hereto.
(f) . The name under which each of the Debtor Facilities is as operated is set forth on the signature page hereto and the Debtor Schedule 2. Each Subtenant agrees that it shall not (i) change such namenames 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 the any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. The Debtor Subtenant has never ever had any name, other name or conducted business under in any other name in any jurisdiction, other than its name . Each Subtenant’s organizational structure is as set forth on Schedule 1 attached hereto. Subject to the signature page heretoterms and conditions of the Amended Lease No. 3 and the Subleases, during no Subtenant shall change its organizational structure or jurisdiction of organization without giving at least thirty (30) days’ prior written notice thereof to the past six years other than as set forth in Schedule 2 annexed heretoSecured Parties.
(g) At The Secured Parties are authorized (but are under no obligation) to make, upon ten (10) Business Days’ notice to the Debtor's own expenseapplicable 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 Debtor will: Secured Parties’ opinion are necessary to:
(i) without limiting discharge any liens which have or may take priority over 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 Note Holders, for the benefit of the Debtor and the Note Holders, lien hereof; and
(ii) upon request by the Note Holders, promptly deliver pay all premiums payable on the insurance policies referred to in the Amended Lease No. 3 or certificates thereof to any other document or agreement executed in connection therewith or herewith, upon the Note Holders, 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. Upon any failure of Tenant to make such payments within the Debtor time permitted therein. No Subtenant shall have any claim against the Secured Parties by reason of its decision not to comply with its make any payments or perform such obligations pursuant to permitted under this Section 3(g), each Note Holder may at its option, and 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 . Each Subtenant shall repay to the Collateral Secured Parties any sums paid by the Secured Parties upon demand. Any sums paid and expenses incurred by the cost of either or both of which Secured Parties pursuant to this paragraph shall be a lien against the Collateral added to the amount of the indebtedness secured hereby and payable on demand with bear interest at a rate per annum equal to 18%the Overdue Rate.
(h) The Debtor hereby assigns 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 Note Holders all of Debtor's rightSecured Parties, title and interest in and to any and all moneys which may become due and payable with respect appropriately endorsed 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 Note Holder for application to amounts outstanding under the Notes in accordance with the terms order of the Notes andSecured Parties, to the extent not provided therein, in such order as the Note Holders shall determinebe held pursuant to this 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) The Debtor will not 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 thereof, other than sales as permitted under the Amended Lease No. 3, without the prior written consent of Inventory in the ordinary course Secured Parties. Except as permitted under the Amended Lease No. 3, no Subtenant shall create, incur, assume or suffer to exist any lien upon any of business and the disposition Collateral without the prior written consent of obsolete or worn-out Equipment in the ordinary course of businessSecured Parties.
(kj) The Debtor will not No Subtenant shall assert against the Note Holders or any Note Holder Secured Parties any claim or defense which the Debtor such Subtenant 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) 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) The Debtor will Each Subtenant shall indemnify and hold harmless the Note Holders and any Note Holder harmless Secured Parties from and against any lossand all liabilities, liabilityobligations, damagelosses, costs damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and expenses nature 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its request, which may be made at imposed on, incurred by or asserted against the Secured Parties in any time and from time way relating to time after an Event or arising out of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with the Debtor's this Agreement or arising out of such Subtenant’s obligations under this Agreement, without any other documents contemplated by or referred to herein or therein or the prior written consent transactions contemplated hereby or thereby or the enforcement of any of the Note Holdersterms hereof or of any such other documents.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Subtenant Security Agreement (Five Star Quality Care Inc), Subtenant Security Agreement (Five Star Quality Care Inc)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at such time, such Lien Grantor is made with full recourse a corporation duly organized, incorporated, amalgamated or continued, as the case may be, and validly existing under the laws of its jurisdiction of organization, incorporation, amalgamation or continuance, as the case may be, of which such Lien Grantor shall on or prior to such date have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, that Schedule 1 lists all Pledged Equity Interests in Material Subsidiaries that are not Canadian Subsidiaries and as to Collateral acquired from time to time after are not U.S. Subsidiaries owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is no financing statement (or similar statement or instrument Each Lien Grantor represents and warrants, on the first day of registration under the law first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear 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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Lien other than (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for Transaction Liens and (ii) with respect to any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests owned by such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests owned by such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest owned by such Lien Grantor.
(d) The chief executive office Each Lien Grantor represents and chief place of business warrants, on the first day of the Debtor first Collateral Period and on each Drawdown Date, that at such time (i) no financing statement, financing change statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Lien Grantor is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that, when the actions which are required to be taken in order to create and perfect a Pledge (make this Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, as disclosed in writing to the Collateral Agent or its counsel on or prior to such date by any NNL Company or its counsel, have been taken, then at such time such Pledge (i) will have been validly created, (ii) will have attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, will secure all the Secured Obligations of such Lien Grantor and (iv) will constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that when PPSA financing statements or financing change statements describing the Collateral have been filed in the applicable offices located in the jurisdictions where such Lien Grantor is located at the address of the Debtor listed on the signature page hereofor where such Lien Grantor's Equity Interests are located, or both, as applicable, and the Debtor pledges have been published in the Register of Personal and Moveable Real Property Rights (the RPMRP), if applicable, the Pledges will not move its chief executive office and chief place of business except to constitute perfected security interests in the Collateral owned by 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 Lien Grantor at such chief executive officetime to the extent that a security interest therein may be perfected by filing pursuant to the PPSA or the Civil Code of Quebec.
(f) Each Lien Grantor represents and warrants, or at on each Drawdown Date, that on such new location as date the Debtor may establish in accordance with the last sentence of this Section 3(d). The Debtor shall establish no such new location until Pledges (i) it shall have given been validly created, (ii) have attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, secure all the Note Holders not less than 30 days' prior written notice Secured Obligations of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Lien Grantor and (iiiv) will constitute a perfected security interest in the Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that (i) if this representation and warranty shall not be true on any Drawdown Date with respect to any Equity Interests as a result of the Collateral Agent not performing in a timely manner its obligations under Section 6(d) with respect to such new locationEquity Interests prior to such Drawdown Date, it the representation with respect to such Equity Interests shall be deemed required to be made not on such Drawdown Date but on the fifteenth Business Day following compliance by the Collateral Agent with such Section with respect to such Equity Interests and (ii) if the Collateral Agent shall have taken determined in its good faith discretion that creating or perfecting a security interest in any Collateral (making such actionsecurity interest enforceable against the Lien Grantor and third parties) by the date this representation and warranty would otherwise be required to be made is impossible, satisfactory impracticable or unreasonably burdensome, the Collateral Agent may, in its good faith discretion, consent to a waiver of compliance with this representation and warranty on such Drawdown Date (which waiver (x) may at the Note Holders option of the Collateral Agent be limited in duration, (includingy) shall in any event be granted and be unlimited in duration if such Collateral is De Minimus Collateral). "DE MINIMUS COLLATERAL" means, at any Drawdown Date, any Equity Interests so long as such Equity Interests, together with all other Equity Interests that are proposed to constitute "De Minimus Collateral" on such Drawdown Date, constitute the Equity Interests of Persons that (together with their consolidated subsidiaries, without limitation, all action required by Section 7 hereof), to maintain duplication) in the security interest aggregate have consolidated revenues that are less than 5% of the Note Holders in the Receivables intended to be granted at all times fully perfected consolidated revenues of NNL and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such nameits Subsidiaries, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 most recent audited consolidated financial statements of the Notes, keep the Collateral fully insured at all times with financially sound NNL and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and its consolidated subsidiaries delivered to the same extent that like properties are customarily so insured by Banks or made publicly available. Without limiting any other entities engaged obligations of any Lien Grantor set forth 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g)Agreement, each Note Holder may at Lien Grantor agrees that it will use its option, and without affecting any of its other rights or remedies provided herein or as a secured party under commercially reasonable efforts to ensure that the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications 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 18%.
(h) The Debtor hereby assigns to the Note Holders all of Debtor's right, title and interest in and to any and all moneys which may become due and payable Pledges with respect to the any Equity Interests that constitute De Minimus Collateral under any policy insuring the Collateral are validly created and perfected (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 Note Holder 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 Note Holders 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 made enforceable against the CollateralLien Grantor and third parties).
(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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Foreign Pledge Agreement (Nortel Networks Corp), Foreign Pledge Agreement (Nortel Networks LTD)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:.
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that, at such time, such Lien Grantor is made with full recourse a corporation duly organized and validly existing under the laws of its jurisdiction of organization of which such Lien Grantor shall on or prior to such time have given written notice 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 therewithCollateral Agent.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests owned by such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests owned by such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest owned by such Lien Grantor.
(d) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at each such time, (i) no financing statement (statement, security agreement, mortgage or similar statement or equivalent document or instrument covering all or part of registration under the law of any jurisdiction) now Collateral owned by such Lien Grantor is on file or registered of record in any public office covering any interest jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any kind other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(e) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that, when the actions which are required to be taken in order to create and perfect a Pledge (and make the Pledge enforceable against the Lien Grantor and third parties) with respect to any Collateral, as disclosed in writing to the Collateral Agent or intended its counsel on or prior to cover such date by any NNL Company or its counsel, have been taken, then at such interesttime such Pledge (i) will have been validly created, which has not been terminated or released by the secured party named therein and (ii) attaches to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so long as the Notes remain outstanding or any of attached, will secure all the Secured Obligations of the Debtor remain unpaid, the Debtor such Lien Grantor and (iv) will not execute constitute a perfected security interest in such Collateral owned by such Lien Grantor prior to all Liens and there will not be on file in any public office any financing statement (or similar statement or instrument rights of registration under the law of any jurisdiction) or statements relating to the Collateralothers therein, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(df) The chief executive office Each Lien Grantor represents and chief place of business of warrants, on each Drawdown Date, that on such date 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 Pledges (i) it shall have given been validly created, (ii) attached to each item of such Collateral on such date (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date), (iii) when so attached, secure all the Note Holders not less than 30 days' prior written notice Secured Obligations of its intention to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Lien Grantor and (iiiv) will constitute a perfected security interests in the Collateral owned by such Lien Grantor prior to all Liens and rights of others therein, except Permitted Liens; provided that (i) if this representation and warranty shall not be true on any Drawdown Date with respect to any Equity Interests as a result of the Collateral Agent not performing in a timely manner its obligations under Section 5(c) with respect to such new locationEquity Interests prior to such Drawdown Date, it the representation with respect to such Equity Interests shall be deemed required to be made not on such Drawdown Date but on the fifteenth Business Day following compliance by the Collateral Agent with such Section with respect to such Equity Interests and (ii) if the Collateral Agent shall have taken determined in its good faith discretion that creating or perfecting a security interest in any Collateral (making such actionsecurity interest enforceable against the Lien Grantor and third parties) by such Drawdown Date is impossible, satisfactory impracticable or unreasonably burdensome, the Collateral Agent may, in its good faith discretion, consent to a waiver of compliance with this representation and warranty on such Drawdown Date (which waiver (x) may at the Note Holders option of the Collateral Agent be limited in duration, (includingy) shall in any event be granted and shall be of unlimited duration if such Collateral is De Minimus Collateral). "DE MINIMUS COLLATERAL" means, at any Drawdown Date, any Equity Interests so long as such Equity Interests, together with all other Equity Interests that are proposed to constitute "De Minimus Collateral" on such Drawdown Date, constitute the Equity Interests of Persons that (together with their consolidated subsidiaries, without limitation, all action required by Section 7 hereof), to maintain duplication) in the security interest aggregate have consolidated revenues that are less than [5]% of the Note Holders in the Receivables intended to be granted at all times fully perfected consolidated revenues of NNL and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor shall not change such nameits Subsidiaries, conduct its business in any other name or take title to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 most recent audited consolidated financial statements of the Notes, keep the Collateral fully insured at all times with financially sound NNL and responsible insurance carriers against loss or damage by fire and other risks, casualties and contingencies and in such manner and its consolidated subsidiaries delivered to the same extent that like properties are customarily so insured by Banks or made publicly available. Without limiting any other entities engaged obligations of any Lien Grantor set forth 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g)Agreement, each Note Holder may at Lien Grantor agrees that it will use its option, and without affecting any of its other rights or remedies provided herein or as a secured party under commercially reasonable efforts to ensure that the Uniform Commercial Code, procure the insurance protection it deems necessary and/or cause repairs or modifications 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 18%.
(h) The Debtor hereby assigns to the Note Holders all of Debtor's right, title and interest in and to any and all moneys which may become due and payable Pledges with respect to the any Equity Interests that constitute De Minimus Collateral under any policy insuring the Collateral are validly created and perfected (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 Note Holder 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 Note Holders 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 made enforceable against the CollateralLien Grantor and third parties).
(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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 2 contracts
Samples: Foreign Pledge Agreement (Nortel Networks LTD), Foreign Pledge Agreement (Nortel Networks Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the times set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at such time, such Lien Grantor is made with full recourse to a corporation duly organized, incorporated, amalgamated or continued, as the Debtor and pursuant to and upon all the warranties, representations, covenantscase may be, and agreements on validly existing (except with respect to NNI) under the part laws of the Debtor contained hereinjurisdiction identified as its jurisdiction of organization, incorporation, amalgamation or continuance, as the case may be, in the Note Perfection Certificate or such other jurisdiction in Canada (or any Province thereof), of which such Lien Grantor gives prior written notice to the Collateral Agent (and otherwise upon the giving of such notice, the Perfection Certificate shall be deemed to have been amended to reflect the information set forth in such notice), and has made all filings with, and given all notices to all governmental authorities required under the laws of the jurisdiction identified as its jurisdiction of organization, incorporation, amalgamation or continuance, as the case may be, in writing in connection herewith or therewithits Perfection Certificate.
(b) Except for Each Lien Grantor represents and warrants, on the security interest first day of the Note Holder thereinfirst Collateral Period, the Debtor is, and as to Collateral acquired from time to time after that Schedule 1 lists all Pledged Equity Interests in Material Subsidiaries that are Canadian Subsidiaries owned by such Lien Grantor on the date hereof the Debtor will beof delivery of Schedule 1 and held directly by such Lien Grantor (i.e., the owner of all the Collateral free from any liennot through a Subsidiary, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same a securities intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is no financing statement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that Schedule 2 lists (i) all Pledged Securities not credited to a Securities Account and owned by such Lien Grantor on the date of delivery of such Schedule 2 (except Securities evidencing Equity Interests in Subsidiaries, Securities of non-Canadian issuers and Equity Interests constituting minority investments in privately held companies), (ii) each Securities Account to which Securities are credited or similar statement or instrument deposited in respect of registration under the law which such Lien Grantor has Securities with a fair market value in excess of any jurisdiction$5,000,000, and (iii) now on file or registered all Commodity Accounts in any public office covering any interest respect of any kind in the Collateral, or intended to cover any such interest, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations Lien Grantors is the account holder or the customer on the date of delivery of such Schedule 2.
(d) Each Lien Grantor represents and warrants, on the first day of the Debtor remain unpaidfirst Collateral Period, and on each Drawdown Date, that such Lien Grantor has provided to the Debtor will not execute Collateral Agent a written notice setting forth the 100 most valuable items of Intellectual Property owned by the NNL Companies at such time, as reasonably determined by the Lien Grantors, acting in their reasonable discretion.
(e) Each Lien Grantor represents and there will not be warrants, on file in any public office any financing statement (or similar statement or instrument the first day of registration under the law first Collateral Period, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any jurisdiction) or statements relating to the Collateral, except Lien other than (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests at such time with respect to a Material Subsidiary that is a Canadian Subsidiary of such Lien Grantor have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests with respect to a Material Subsidiary that is a Canadian Subsidiary of such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements, the Security Documents and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest with respect to a Material Subsidiary that is a Canadian Subsidiary of such Lien Grantor with respect thereto.
(f) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that at such time such Lien Grantor owns or has rights in all of its Collateral (other than after-acquired Collateral in which such Lien Grantor will own or have rights in such Collateral at the time so acquired) free and clear of any Lien other than Permitted Liens. Each Lien Grantor covenants that it shall own or have rights in all of its Collateral, free and clear of any Lien other than Permitted Liens.
(dg) The chief executive office Each Lien Grantor represents and chief place of business warrants, on the first day of the Debtor is located first Collateral Period and on each Drawdown Date, that at the address such time (i) no financing statement, financing change statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Debtor listed Collateral owned by such Lien Grantor is on file or of record in any jurisdiction in Canada in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and (ii) no Collateral owned by such Lien Grantor is in the possession or under the control of any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(h) Each Lien Grantor represents and warrants, on the signature page hereoffirst day of the first Collateral Period and on each Drawdown Date, that, to the extent attachment and creation of the Transaction Liens are governed by the laws of a jurisdiction in Canada, the Transaction Liens on all Collateral owned by such Lien Grantor at such time (i) have been validly created, (ii) attach to each item of such Collateral on the date hereof (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Secured Obligations of such Lien Grantor.
(i) Each Lien Grantor (other than NNI) represents and warrants that, on or prior to January 31, 2002, such Lien Grantor has delivered a Perfection Certificate to the Collateral Agent. The information set forth therein is correct and complete as of the date of delivery thereof.
(j) Each Lien Grantor represents and warrants, on the first day of each Collateral Period and on each Drawdown Date, that when PPSA financing statements or financing change statements describing the Collateral have been filed in the applicable offices located in the jurisdictions where such Lien Grantor's assets are located as specified in its Perfection Certificate and, with respect to NNI, in each Province of Canada, and the Debtor security interests in Collateral located in Quebec have been published in the Register of Personal and Movable Real Rights ("RPMRR"), if applicable, (as amended pursuant to Section 4(a)), the Transaction Liens will not move its chief executive office constitute perfected security interests in the Collateral owned by such Lien Grantor in favor of the Collateral Agent for the rateable benefit of the Secured Parties to the extent that a security interest therein may be perfected by filing pursuant to the PPSA or the Civil Code of Quebec, as the case may be, prior, in the case of Collateral other than (x) fixtures and chief place (y) Collateral with respect to which Intellectual Property Filings must be made in order to perfect a Lien thereon, to all other Liens and rights of business others therein except Permitted Liens. When, in addition to the filing of such PPSA financing statements and financing change statements and the publication of the security interests in Collateral located in Quebec in the RPMRR, if applicable, the applicable Intellectual Property Filings have been made with respect to such new location as Lien Grantor's Material Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 6(a)), the Debtor Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Material Recordable Intellectual Property to the extent that security interests therein 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 be perfected by such filings, prior to all other contract Liens and 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)others therein except Permitted Liens. The Debtor shall establish no such new location until Except for (i) it shall have given to the Note Holders not less than 30 days' prior written notice filing of its intention to do sosuch PPSA financing statements and financing change statements and the publication of the security interest in Collateral located in Quebec in the RPMRR, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably requestif applicable, and (ii) such Intellectual Property Filings, no registration, recordation or filing with respect to such new locationany Canadian, it shall have taken such actionProvincial or Territorial governmental body, satisfactory agency or official is required in connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the extent that a security interest of the Note Holders in the Receivables intended to Collateral may be granted at all times fully perfected and therein by the filings described in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, and above (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. Upon it being understood that any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of businessCollateral constituting Securities is subject to applicable securities laws).
(k) The Debtor will not assert against Each Lien Grantor represents and warrants, on the Note Holders or any Note Holder any claim or defense which the Debtor may have against any seller first day of the first Collateral or any part thereof or against any other Person Period, and on each Drawdown Date, that at such time no Lien Grantor is the claimant with respect to a claim in excess of $10,000,000, arising in tort in which the Collateral claim arose in the course of the Lien Grantor's business or profession that has not been made subject to the Transaction Liens; provided that such representation is not made with respect to any part thereofclaim in tort arising in a jurisdiction outside Canada.
(l) The Debtor will indemnify Each Lien Grantor represents and hold warrants, on the Note Holders and any Note Holder harmless from and against any loss, liability, damage, costs and expenses whatsoever arising from the Debtor's use, operation, ownership or possession first day of the first Collateral or Period and on each Drawdown Date, that at such time no Lien Grantor is the beneficiary under any part thereofletter of credit in a maximum face amount in excess of $10,000,000 other than a Supporting Letter of Credit with respect to which the issuer thereof has not (i) been notified that such letter of credit has been made subject to a Transaction Lien and (ii) acknowledged receipt of such notice.
(m) The Debtor will maintain Each Lien Grantor represents and warrants, on the confidentiality first day of all customer lists the first Collateral Period, and on each Drawdown Date, that at such time such Lien Grantor is not sell a party to any Material Governmental Contract, except as disclosed in writing to the Collateral Agent on or otherwise dispose of prior to such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its requesttime. Each Lien Grantor covenants that, which may be made at any time and from time to time after an if a Specified Event of Default.
Default shall have occurred and be continuing, such Lien Grantor will, promptly at the request of the Collateral Agent, execute and deliver to the Collateral Agent with respect to Pledged Material Government Contracts all assignments, notices of assignment and other documents required to be filed with (nx) The Debtor will not enter into any agreement that is inconsistent Provincial or Territorial government or agency or (y) the federal government in accordance with the Debtor's obligations under this AgreementFinancial Administration Act, without as amended (the prior written consent "FINANCIAL ADMINISTRATION ACT"), in either case to insure compliance with the Financial Administration Act or any similar applicable legislation of the Note Holders.
(o) If the Debtor transfer any assets Province or Territory of Canada; provided that no such execution and delivery shall be required with respect to any subsidiary Material Governmental Contract to the extent such execution and delivery is contrary to the Financial Administration Act or affiliate now existing any similar applicable legislation of any Province or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligationsTerritory of Canada.
Appears in 1 contract
Samples: Canadian Guarantee and Security Agreement (Nortel Networks LTD)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor Borrower represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
that (a) This Agreement is made with full recourse the XXX holds a fee simple estate and the Borrower holds a leasehold estate in the Land and the buildings and improvements thereon, and has good and absolute title to its respective interest in the Mortgaged Property subject only to those exceptions to title specifically set forth in the title policy issued or to be issued by Fidelity National Title Insurance Company to the Debtor Mortgagee and pursuant insuring the lien of this Mortgage (the “Permitted Encumbrances”); and each Mortgagor has good right, full power and lawful authority to convey, assign, mortgage or encumber the Mortgaged Property as provided herein and upon Mortgagee may at all times peaceably and quietly enter upon, hold, occupy and enjoy the warranties, representations, covenants, Mortgaged Property in accordance with and agreements on subject to the part of the Debtor contained herein, in the Note and otherwise made in writing in connection herewith or therewith.
terms hereof; (b) Except for the Mortgaged Property is and at all times shall continue to be free and clear of all liens, security interest of the Note Holder therein, the Debtor isinterests, and as to Collateral acquired from time to time after the date hereof the 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 (encumbrances whatsoever other than the Permitted Liens) and the Debtor 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 Note Holder.
Encumbrances (c) 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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Note Holders 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 Note Holders 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 Note Holders may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor is as set forth on the signature page hereto and the Debtor Mortgagor shall not change such name, conduct its business in grant any other name right of way or take title to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders all of Debtor's right, title and interest in and to any and all moneys which may become due and payable easement with respect to the Collateral under Land or agree to any policy insuring the Collateral (except proceeds relating to tangible personal property which are applied to restoration or replacement), including return of unearned premium, covenants and shall cause any such insurance company to make payment directly to the Note Holder for application to amounts outstanding under the Notes restrictions not now in accordance with the terms of the Notes and, to the extent not provided therein, in such order as the Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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, effect without the prior written consent of Mortgagee, which consent shall not be unreasonably withheld, conditioned or delayed; (d) the Note Holders.
Borrower will maintain and preserve the lien of this Mortgage as a first and prior lien, subject only to the Permitted Encumbrances; and (oe) If this Mortgage is and at all times shall continue to be a valid and binding obligation enforceable in accordance with the Debtor transfer terms contained herein, and the execution and delivery hereof does not contravene any assets contract or agreement to which Mortgagor is a party or by which Mortgagor or any subsidiary of its properties may be bound and does not contravene any law, order, decree, rule or affiliate now existing or hereafter formed, before so doing, it shall cause such person regulation to sign a guaranty and security agreement covering the secured obligations.which Mortgagor is subject,
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants on the Effective Date, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:
(a) This Agreement is made with full recourse to the Debtor Each Lien Grantor represents and pursuant to and upon all the warranties, representations, covenants, and agreements warrants that on the part Effective Date such Lien Grantor is a corporation or other business organization duly organized, validly existing and in good standing under the laws of the Debtor contained herein, jurisdiction identified as its jurisdiction of organization in the Note and otherwise made in writing in connection herewith or therewithits Perfection Certificate.
(b) Except for Each Lien Grantor represents and warrants, on the security interest of the Note Holder thereinEffective Date, the Debtor is, and as to Collateral acquired from time to time after the date hereof the Debtor will be, the owner of that Schedule 1 lists all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of Pledged Equity Interests (except Equity Interests constituting minority investments in any Person (other than Permitted Liensan NNC Company) owned by such Lien Grantor and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same held directly by such Lien Grantor (i.e., not through a Subsidiary, a Securities Intermediary or any interest therein adverse to the Note Holderother Person).
(c) There is no financing statement Each Lien Grantor represents and warrants, on the Effective Date, that Schedule 2 lists all Pledged Securities not credited to a Securities Account and owned directly by such Lien Grantor on the date of delivery of such Schedule 2 (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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Note Holders hereby granted and provided for Securities listed on Schedule 1 and (ii) Equity Interests constituting minority investments in any Person other than an NNC Company), each Securities Account to which Financial Assets are credited in respect of which such Lien Grantor owns Security Entitlements, so long as Financial Assets with a fair market value in excess of $5,000,000 are credited to such Securities Account as of the date of delivery of such Schedule 2 and all Commodity Accounts in respect of which such Lien Grantor is the Commodity Customer on the date of delivery of such Schedule 2.
(d) Each Lien Grantor represents and warrants, on the Effective Date, that such Lien Grantor has provided to the Collateral Agent a written notice setting forth a list of the Material Intellectual Property at such time.
(e) Each Lien Grantor represents and warrants, on the Effective Date, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than the Transaction Liens, and any tax liens, judgment liens, put/call arrangements and Liens existing on the Effective Date. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any other Permitted Liens. Such Lien Grantor represents and warrants, on the Effective Date, that all shares of capital stock included in such Pledged Equity Interests at such time with respect to a Subsidiary of such Lien Grantor (including shares of capital stock in respect of which such Lien Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests with respect to a Subsidiary of such Lien Grantor are subject to any option to purchase or similar right of any Person.
(f) Each Lien Grantor represents and warrants that, on the Effective Date, such Lien Grantor owns or has rights in all of its Collateral, free and clear of any Lien other than Permitted Liens.
(dg) The chief executive office Each Lien Grantor represents and chief place of business warrants that, on the Effective Date, no financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Debtor Collateral owned by such Lien Grantor is located at on file or of record in any jurisdiction in the address United States in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and no Collateral owned by such Lien Grantor is in the possession or under the Control of any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(h) Each Lien Grantor represents and warrants, on the Effective Date, that, to the extent attachment and creation of the Debtor listed Transaction Liens is governed by the laws of a jurisdiction in the United States (including the UCC), the Transaction Liens on all Collateral owned by such Lien Grantor at such time have been validly created, attach to each item of such Collateral on the signature page hereofdate hereof (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and when so attached, will secure all the Debtor will not move its chief executive office and chief place Secured Obligations 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 Lien Grantor.
(i) it shall have given Each Lien Grantor represents and warrants that, on or prior to the Note Holders not less than 30 days' prior written notice of its intention to do soEffective Date, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory Lien Grantor has delivered a Perfection Certificate to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain Collateral Agent and that the security interest information set forth therein is correct and complete as of the Note Holders in date of delivery thereof. Each Lien Grantor represents and warrants that, as of September 30, 2005, the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) The Debtor has no Collateral located outside of locations financial information set forth on Schedule 1 annexed hereto4 fairly presented the asset and revenue information set forth therein.
(fj) The name of the Debtor is as set forth Each Lien Grantor represents and warrants, on the signature page hereto and the Debtor shall not change such nameEffective Date, conduct its business in any other name or take title to that when a UCC financing statement describing the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 hereto3 has been filed in the offices specified in such Perfection Certificate (as amended pursuant to Section 3(a)) as being such Lien Grantor’s jurisdiction of organization (if such Lien Grantor is a “registered organization” within the meaning of the UCC) or chief executive office (if such Lien Grantor is not a “registered organization” within the meaning of the UCC), the Transaction Liens will constitute perfected security interests in the Collateral owned by such Lien Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior, in the case of Collateral other than (x) fixtures, (y) Collateral with respect to which Intellectual Property Filings must be made in order to perfect a Lien thereon and (z) unregistered Copyrights, to the extent applicable law does not permit unregistered Copyrights to be perfected by the filing of a UCC financing statement, to all Liens and rights of others therein except Permitted Liens. When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Lien Grantor’s Material Recordable Intellectual Property (including any future filings required pursuant to Sections 4(a) and 5(a)), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Material Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Liens. Except for (i) the filing of such UCC financing statements, (ii) such Intellectual Property Filings and filings with respect to Intellectual Property (other than Material Recordable Intellectual Property) to the extent applicable law does not permit a Lien thereon to be perfected by the filing of a UCC financing statement and (iii) with respect to motor vehicles, the delivery of the certificates of title with respect thereto, no registration, recordation or filing with any U.S. governmental body, agency or official is required in connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection under the UCC or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens (it being understood that any disposition of Collateral constituting Investment Property is subject to applicable securities laws).
(gk) At Each Lien Grantor represents and warrants that, on the Debtor's own expenseEffective Date, such Lien Grantor has taken all actions necessary under the Debtor will: UCC to perfect its interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (iper Account or obligation evidenced by Chattel Paper) without limiting purchased or otherwise acquired by it, as against its assignors and creditors of its assignors. Such Lien Grantor covenants that it will take all actions necessary under the provisions UCC to perfect its interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (per Account or obligation evidenced by Chattel Paper) purchased or otherwise acquired by it, as against its assignors and creditors of its assignors.
(l) Each Lien Grantor represents and warrants that, on the NotesEffective Date, keep no Lien Grantor is the claimant with respect to any Material Commercial Tort Claim; provided that such representation is not made with respect to any Commercial Tort Claim arising in a jurisdiction outside the United States. Such Lien Grantor covenants that if it acquires a Material Commercial Tort Claim arising in the United States, such Lien Grantor will promptly sign and deliver a Security Agreement Supplement granting a Security Interest in such Commercial Tort Claim (which shall be described therein in specificity required to satisfy Official Comment 5 to UCC Section 9-108) to 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 Note Holders, Agent for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 thereofSecured Parties.
(m) The Debtor will maintain Each Lien Grantor represents and warrants that, on the confidentiality Effective Date, no Lien Grantor is the beneficiary under any Letter of all customer lists and Credit in a maximum face amount in excess of $10,000,000 (other than a Supporting Letter of Credit) with respect to which the Collateral Agent has not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its request, which may be made at any time and from time to time after an Event of Defaultbeen granted Control.
(n) The Debtor will Each Lien Grantor represents and warrants that, on the Effective Date, such Lien Grantor is not enter into a party to any agreement that Material Government Contract, except as disclosed in writing to the Collateral Agent on or prior to such time. Each Lien Grantor covenants that, if a Specified Event of Default shall have occurred and is inconsistent continuing, such Lien Grantor will, promptly at the request of the Collateral Agent, execute and deliver to the Collateral Agent with respect to Pledged Material Government Contracts all assignments, notices of assignment and other documents required to be filed with (x) any state or local government or agency or (y) the federal government of the United States or any agency or instrumentality thereof in accordance with the Debtor's obligations under this AgreementAssignment of Claims Act of 1940, without as amended, 31 U.S.C. Section 3727 and 41 U.S.C. Section 15 (the prior written consent “Assignment of Claims Act”), in either case to insure compliance with the Assignment of Claims Act; provided that no such execution and delivery shall be required with respect to any Material Government Contract if such Material Government Contract is with the federal government of the Note HoldersUnited States or any agency or instrumentality thereof and such assignment is not of a type meeting the requirements of 31 U.S.C. Section 3727(c) of the Assignment of Claims Act, or a comparable provision if such Section is amended.
(o) If NNI represents and warrants, on the Debtor transfer Effective Date, that the aggregate book value of the Specified Canadian Assets did not exceed $10,000,000 as of September 30, 2005. NNI covenants that it will not permit the aggregate book value of the Specified Canadian Assets to exceed $10,000,000 at any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligationstime.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants on the Effective Date, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:
(a) This Agreement is made with full recourse to the Debtor Each Lien Grantor represents and pursuant to and upon all the warranties, representations, covenants, and agreements warrants that on the part Effective Date, such Lien Grantor is a corporation or other business organization duly organized, validly existing and in good standing under the laws of the Debtor contained herein, jurisdiction identified as its jurisdiction of organization in the Note and otherwise made in writing in connection herewith or therewithits Perfection Certificate.
(b) Except for Each Lien Grantor represents and warrants, on the security interest of the Note Holder thereinEffective Date, the Debtor is, and as to Collateral acquired from time to time after the date hereof the Debtor will be, the owner of that Schedule 1 lists all the Collateral free from any lien, security interest, encumbrance or other right, title or interest of Pledged Equity Interests (except Equity Interests constituting minority investments in any Person (other than Permitted Liensan NNC Company) owned by such Lien Grantor and the Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same held directly by such Lien Grantor (i.e., not through a Subsidiary, a Securities Intermediary or any interest therein adverse to the Note Holderother Person).
(c) There Each Lien Grantor represents and warrants, on the Effective Date, that Schedule 2 lists all Pledged Securities not credited to a Securities Account or a similar account maintained by a depository institution or Securities Intermediary whose jurisdiction is no financing statement in Canada and owned directly by such Lien Grantor on the date of delivery of such Schedule 2 (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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Note Holders hereby granted and provided for Securities listed on Schedule 1 and (ii) Equity Interests constituting minority investments in any Person other than an NNC Company), each Securities Account maintained on behalf of a Lien Grantor to which financial assets are credited with a fair market value in excess of $5,000,000 as of the date of delivery of such Schedule 2 and all Commodity Accounts in respect of which such Lien Grantor is the Commodity Customer on the date of delivery of such Schedule 2.
(d) Each Lien Grantor represents and warrants, on the Effective Date that such Lien Grantor has provided to the Collateral Agent a written notice setting forth a list of the Material Intellectual Property at such time.
(e) Each Lien Grantor represents and warrants, on the Effective Date, that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and clear of any Lien other than the Transaction Liens, and any tax liens, judgment liens, put/call arrangements and Liens existing on the Effective Date. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any other Permitted Liens. Such Lien Grantor represents and warrants, on the Effective Date, that all shares of capital stock included in such Pledged Equity Interests at such time with respect to a Subsidiary of such Lien Grantor (including shares of capital stock in respect of which such Lien Grantor owns an Equity Interest) have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests with respect to a Subsidiary of such Lien Grantor are subject to any option to purchase or similar right of any Person.
(f) Each Lien Grantor represents and warrants that, on the Effective Date, such Lien Grantor owns or has rights in all of its Collateral (other than after-acquired Collateral in which such Lien Grantor will own or have rights in such Collateral at the time so acquired) free and clear of any Lien other than Permitted Liens.
(dg) The chief executive office Each Lien Grantor represents and chief place of business warrants that, on the Effective Date, no financing statement, financing change statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Debtor Collateral owned by such Lien Grantor is located at on file or of record in any jurisdiction in Canada in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, financing change statements, mortgages or other similar or equivalent documents with respect to Permitted Liens and no Collateral owned by such Lien Grantor is in the address possession or under the Control of the Debtor listed any other Person having a claim thereto or security interest therein, other than a Permitted Lien.
(h) Each Lien Grantor represents and warrants that, on the signature page hereofEffective Date, such Lien Grantor has taken all actions necessary under the PPSA to perfect its interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (per Account or obligation evidenced by Chattel Paper) purchased or otherwise acquired by it, as against its assignors and creditors of its assignors. Such Lien Grantor covenants that it will take all actions necessary under the Debtor will not move PPSA to perfect its chief executive office interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (per Account or obligation evidenced by Chattel Paper) purchased or otherwise acquired by it, as against its assignors and chief place creditors 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 its assignors.
(i) it shall have given Each Lien Grantor represents and warrants, on the Effective Date, that, to the Note Holders not less than 30 days' extent attachment and creation of the Transaction Liens is governed by the laws of a jurisdiction in Canada, the Transaction Liens on all Collateral owned by such Lien Grantor at such time (i) have been validly created, (ii) attach to each item of such Collateral on the date hereof (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Secured Obligations of such Lien Grantor.
(j) Each Lien Grantor represents and warrants that, on or prior written notice to the Effective Date, such Lien Grantor has delivered a Perfection Certificate to the Collateral Agent and that the information set forth therein is correct and complete as of its intention the date of delivery thereof. Each Lien Grantor represents and warrants that, as of September 30, 2005, the financial information set forth on Schedule fairly presented the asset and revenue information set forth therein.
(k) Each Lien Grantor represents and warrants, on the Effective Date, that when a PPSA financing statement or a financing change statement describing the Collateral has been filed in the jurisdictions specified in such Perfection Certificate (as amended pursuant to do soSection 3(a)) in each Province of Canada, clearly and similar statements describing the hypothec in the Collateral located in Quebec have been published in the Register of Personal and Movable Real Rights (“RPMRR”), if applicable, the Transaction Liens will constitute perfected security interests (and in the case of the Collateral located in Quebec, will constitute hypothecs opposable to third parties) in the Collateral owned by such new location and providing such other information Lien Grantor in connection therewith favour of the Collateral Agent for the ratable benefit of the Secured Parties to the extent that a security interest or a hypothec therein may be perfected by filing pursuant to the UCC, PPSA or the Civil Code of Quebec, as the Note Holders case may reasonably requestbe, prior, in the case of Collateral other than (x) fixtures and (y) Collateral with respect to which Canadian Intellectual Property Filings must be made in order to perfect a Lien thereon, to all other Liens and rights of others therein except Permitted Liens. When, in addition to the filing of such PPSA financing statements and financing change statements and the publication of the hypothecs in Collateral located in Quebec in the RPMRR, if applicable, the applicable Canadian Intellectual Property Filings have been made with respect to such Lien Grantor’s Material Recordable Intellectual Property (including any future filings required pursuant to Sections 4(a) and 5(a)), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Material Recordable Intellectual Property to the extent that security interests and hypothecs therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Liens. Except for (i) the filing of such PPSA financing statements and financing change statements and the publication of the security interest and hypothecs in Collateral located in Quebec in the RPMRR, if applicable, and (ii) such Canadian Intellectual Property Filings, no registration, recordation or filing with any U.S., Canadian, Provincial or Territorial governmental body, agency or official is required in connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens to the extent that a security interest or a hypothec in the Collateral may be perfected therein by the filings described in (i) and (ii) above (it being understood that any disposition of Collateral constituting Securities is subject to applicable securities laws).
(l) Each Lien Grantor represents and warrants that, on the Effective Date, no Lien Grantor is the claimant with respect to any Material Commercial Tort Claim; provided that such new location, representation is not made with respect to any Commercial Tort Claim arising in a jurisdiction outside the United States. Such Lien Grantor covenants that if it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders acquires a Material Commercial Tort Claim arising in the Receivables intended United States, such Lien Grantor will promptly sign and deliver a Security Agreement Supplement granting a Security Interest in such Commercial Tort Claim (which shall be described therein in specificity required to be granted at all times fully perfected and in full force and effect.
(esatisfy Official Comment 5 to UCC Section 9 108) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, Agent for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 thereofSecured Parties.
(m) The Debtor will maintain Each Lien Grantor represents and warrants that, on the confidentiality Effective Date, no Lien Grantor is the beneficiary under any letter of all customer lists and credit in a maximum face amount in excess of $10,000,000 (other than a Supporting Letter of Credit) with respect to which the Collateral Agent has not sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its request, which may be made at any time and from time to time after an Event of Defaultbeen granted Control.
(n) The Debtor will Each Lien Grantor represents and warrants that, on the Effective Date, such Lien Grantor is not enter into a party to any agreement that Material Government Contract, except as disclosed in writing to the Collateral Agent on or prior to such time. Each Lien Grantor covenants that, if a Specified Event of Default shall have occurred and is inconsistent continuing, such Lien Grantor will, promptly at the request of the Collateral Agent, execute and deliver to the Collateral Agent with respect to Pledged Material Government Contracts all assignments, notices of assignment and other documents required to be filed with (x) any Provincial or Territorial government or agency or (y) the federal government of Canada in accordance with the Debtor's obligations under this AgreementFinancial Administration Act, without as amended (the prior written consent “Financial Administration Act”), in either case to insure compliance with the Financial Administration Act or any similar applicable legislation of the Note Holders.
(o) If the Debtor transfer any assets Province or Territory of Canada; provided that no such execution and delivery shall be required with respect to any subsidiary Material Government Contract to the extent such execution and delivery is contrary to the Financial Administration Act or affiliate now existing any similar applicable legislation of any Province or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligationsTerritory of Canada.
Appears in 1 contract
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor representsEach Lien Grantor represents and warrants, warrants at the time set forth below, and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreementwhere indicated below, as follows:
(a) This Agreement Each Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that at such time, such Lien Grantor is made a corporation duly organized, validly existing and, except with full recourse respect to NNL, in good standing under the laws of (x) with respect to NNL, its jurisdiction of organization in effect on the first date of the Collateral Period of which NNL gives prior written notice to the Debtor Collateral Agent and pursuant (y) with respect to every other Lien Grantor, the jurisdiction identified as its jurisdiction of organization in its Perfection Certificate or such other jurisdiction in the United States (or any State thereof) of which such Lien Grantor gives prior written notice to the Collateral Agent (and upon all the warrantiesgiving of such notice, representations, covenants, and agreements on the part of Perfection Certificate shall be deemed to have been amended to reflect the Debtor contained herein, information set forth in the Note and otherwise made in writing in connection herewith or therewithsuch notice).
(b) Except for the security interest of the Note Holder therein, the Debtor is, and as to Collateral acquired from time to time after the date hereof the 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 Each Lien Grantor (other than Permitted LiensNNL) represents and warrants, on the Debtor shall defend first day of the first Collateral against Period, that Schedule 1 lists all claims Pledged Equity Interests in Material Subsidiaries that are U.S. Subsidiaries owned by such Lien Grantor on the date of delivery of such Schedule 1 and demands of all Persons at any time claiming the same held directly by such Lien Grantor (i.e., not through a Subsidiary, a Securities Intermediary or any interest therein adverse to the Note Holderother Person).
(c) There Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that Schedule 2 lists (i) all Pledged Securities not credited to a Securities Account and owned by such Lien Grantor on the date of delivery of such Schedule 2 (except (x) Securities evidencing Equity Interests in Subsidiaries and Equity Interest constituting minority investments in privately held companies and (y) with respect to NNL only, Securities of non-U.S. issuers), (ii) each Securities Account to which Financial Assets are credited in respect of which such Lien Grantor owns Security Entitlements (except, with respect to NNL only, if the relevant Securities Intermediary's jurisdiction 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 not in the CollateralUnited States or any State thereof), or intended to cover any such interest, which has not been terminated or released by the secured party named therein and so long as Financial Assets with a fair market value in excess of $5,000,000 are credited to such Securities Account as of the Notes remain outstanding date of delivery of such Schedule 2 and (iii) all Commodity Accounts in respect of which such Lien Grantor is the Commodity Customer (except, with respect to NNL only, if the relevant Commodities Intermediary's jurisdiction is not the United States or any State thereof) on the date of delivery of such Schedule 2.
(d) Each Lien Grantor represents and warrants, on the first day of the Secured Obligations first Collateral Period, and on each Drawdown Date, that such Lien Grantor has provided to the Collateral Agent a written notice setting forth the 100 most valuable items of Intellectual Property owned by the NNL Companies at such time, as reasonably determined by the Lien Grantors, acting in their reasonable discretion.
(e) Each Lien Grantor represents and warrants, on the first day of the Debtor remain unpaidfirst Collateral Period, the Debtor will not execute that all Pledged Equity Interests owned by such Lien Grantor at such time are owned by it free and there will not be on file in any public office any financing statement (or similar statement or instrument of registration under the law clear of any jurisdiction) or statements relating to the Collateral, except Lien other than (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Each Lien Grantor covenants that it will cause all Pledged Equity Interests owned by such Lien Grantor from time to time to be owned by it free and clear of any Lien other than (i) the Transaction Liens and (ii) any tax liens, judgment liens, put/call arrangements and Liens existing on the date of this Agreement that are Permitted Liens. Such Lien Grantor represents and warrants, on the first day of the first Collateral Period and on each Drawdown Date, that all shares of capital stock included in such Pledged Equity Interests at such time with respect to a Material Subsidiary of such Lien Grantor (including shares of capital stock in respect of which such Lien Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable. Such Lien Grantor covenants that it will ensure that none of the Pledged Equity Interests with respect to a Material Subsidiary of such Lien Grantor are subject to any option to purchase or similar right of any Person. Such Lien Grantor covenants that it will not become a party to or otherwise bound by any agreement (except the Credit Agreements and the Indentures) which restricts in any manner the rights of any present or future holder of any Pledged Equity Interest with respect to a Material Subsidiary of such Lien Grantor with respect thereto.
(f) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, that at such time such Lien Grantor owns or has rights in all of its Collateral, free and clear of any Lien other than Permitted Liens. The Lien Grantor covenants that it shall own or have rights in all of its Collateral, free and clear of any Lien other than Permitted Liens.
(dg) The chief executive office Each Lien Grantor represents and chief place of business warrants, on the first day of the Debtor is located first Collateral Period and on each Drawdown Date, that 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 each 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 time (i) it shall have given no financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Lien Grantor is on file or of record in any jurisdiction in the United States in which such filing or recording would be effective to the Note Holders not less than 30 days' prior written notice of its intention perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to do so, clearly describing such new location and providing such other information in connection therewith as the Note Holders may reasonably request, Permitted Liens and (ii) with respect to no Collateral owned by such new location, it shall have taken such action, satisfactory to Lien Grantor is in the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain possession or under the Control of any other Person having a claim thereto or security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effecttherein, other than a Permitted Lien.
(eh) The Debtor has no Each Lien Grantor represents and warrants, on the first day of the first Collateral located outside Period and on each Drawdown Date, that, to the extent attachment and creation of locations set forth the Transaction Liens is governed by the laws of a jurisdiction in the United States (including the UCC), the Transaction Liens on Schedule 1 annexed heretoall Collateral owned by such Lien Grantor at such time (i) have been validly created, (ii) attach to each item of such Collateral on the date hereof (or, if such Lien Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Secured Obligations of such Lien Grantor.
(fi) The name of the Debtor is as set forth Each Lien Grantor (other than NNL) represents and warrants that, on the signature page hereto and the Debtor shall not change or prior to January 15, 2002, such name, conduct its business in any other name or take title Lien Grantor has delivered a Perfection Certificate to the Collateral in any other name while this Agreement remains in effect, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably requestAgent. The Debtor has never had any name, or conducted business under any name in any jurisdiction, other than its name information set forth therein is correct and complete as of the date of delivery thereof.
(j) Each Lien Grantor represents and warrants, on the signature page heretofirst day of each Collateral Period and on each Drawdown Date, during that when a UCC financing statement describing the past six years other than Collateral as set forth in Schedule 2 annexed hereto3 has been filed (x) with respect to NNL only, (i) in the District of Columbia so long as NNL is not incorporated in a jurisdiction in the United States or any State thereof and (ii) in the appropriate filing office in the jurisdiction of incorporation of NNL, if NNL is incorporated in a jurisdiction in the United States or any State thereof, and (y) with respect to every other Lien Grantor, in the offices specified in such Perfection Certificate (as amended pursuant to Section 4 (a)) as being such Lien Grantor's jurisdiction of organization (if such Lien Grantor is a "registered organization" within the meaning of UCC) or chief executive office (if such Lien Grantor is not a "registered organization" within the meaning of the UCC), the Transaction Liens will constitute perfected security interests in the Collateral owned by such Lien Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior, in the case of Collateral other than (x) fixtures, (y) Collateral with respect to which Intellectual Property Filings must be made in order to perfect a Lien thereon and (z) unregistered Copyrights, to the extent applicable law does not permit unregistered Copyrights to be perfected by the filing of a UCC financing statement, to all Liens and rights of others therein except Permitted Liens. When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Lien Grantor's Material Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 6(a)), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Lien Grantor in its Material Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Liens. Except for (i) the filing of such UCC financing statements, (ii) such Intellectual Property Filings and filings with respect to Intellectual Property (other than Material Recordable Intellectual Property) to the extent applicable law does not permit a Lien thereon to be perfected by the filing of a UCC financing statement and (iii) with respect to motor vehicles, the delivery of the certificates of title with respect thereto, no registration, recordation or filing with any U.S. governmental body, agency or official is required in connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection under the UCC or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens (it being understood that any disposition of Collateral constituting Investment Property is subject to applicable securities laws).
(gk) At Each Lien Grantor (other than NNL) represents and warrants, on the Debtor's own expense, the Debtor will: (i) without limiting the provisions first day of the Notesfirst Collateral Period, keep that as of such time such Lien Grantor has taken all actions necessary under the UCC to perfect its interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (per Account or obligation evidenced by Chattel Paper) purchased or otherwise acquired by it, as against its assignors and creditors of its assignors. Such Lien Grantor covenants that it will take all actions necessary under the UCC to perfect its interest in any Accounts or Chattel Paper in an amount in excess of $3,000,000 (per Account or obligation evidenced by Chattel Paper) purchased or otherwise acquired by it, as against its assignors and creditors of its assignors.
(l) Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, and on each Drawdown Date, that at such time no Lien Grantor is the claimant with respect to any Material Commercial Tort Claim that has not been made subject to the Transaction Liens; provided that such representation is not made with respect to any Commercial Tort Claim arising in a jurisdiction outside the United States. Such Lien Grantor covenants that if it acquires a Material Commercial Tort Claim, such Lien Grantor will promptly sign and deliver a Security Agreement Supplement granting a Security Interest in such Commercial Tort Claim (which shall be described therein in specificity required to satisfy Official Comment 5 to UCC Section 9-108) to 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 Note Holders, Agent for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 thereofSecured Parties.
(m) The Debtor will maintain Each Lien Grantor represents and warrants, on the confidentiality first day of all customer lists the first Collateral Period and on each Drawdown Date, that at such time no Lien Grantor is the beneficiary under any Letter of Credit in a maximum face amount in excess of $10,000,000, other than a Supporting Letter of Credit with respect to which the issuer thereof has not sell or otherwise dispose (i) been notified that such letter of credit has been made subject to a Transaction Lien and (ii) acknowledged receipt of such lists except that the Debtor shall deliver copies thereof to each Note Holder upon its request, which may be made at any time and from time to time after an Event of Defaultnotice.
(n) The Debtor will Each Lien Grantor represents and warrants, on the first day of the first Collateral Period, and on each Drawdown Date, that at such time such Lien Grantor is not enter into a party to any agreement that is inconsistent Material Government Contract, except as disclosed in writing to the Collateral Agent on or prior to such time. Each Lien Grantor covenants that, if a Specified Event of Default shall have occurred and be continuing, such Lien Grantor will, promptly at the request of the Collateral Agent, execute and deliver to the Collateral Agent with respect to Pledged Material Government Contracts all assignments, notices of assignment and other documents required to be filed with (x) any state or local government or agency or (y) the federal government of the United States or any agency or instrumentality thereof in accordance with the Debtor's obligations under this AgreementAssignment of Claims Act of 1940, without as amended, 31 U.S.C. Section 3727 and 41 U.S.C. Section 15 (the prior written consent "ASSIGNMENT OF CLAIMS ACT"), in either case to insure compliance with the Assignment of Claims Act; provided that no such execution and delivery shall be required with respect to any Material Government Contract if (x) such Material Government Contract is with the federal government of the Note HoldersUnited States or any agency or instrumentality thereof and such assignment is not of a type meeting the requirements of 31 U.S.C. Section 3727(c) of the Assignment of Claims Act, or a comparable provision if such Section is amended.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 1 contract
Samples: Guarantee and Security Agreement (Nortel Networks Corp)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
(a) 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 of the Note Holder therein, the Debtor is, and as to Collateral acquired from time to time after the date hereof the hereof, Debtor shall and will be, be the owner of all the Collateral free from any lienliens, security interestinterests, encumbrance encumbrances or other right, title or interest of any Person other person, firm or corporation, except for the security interest granted hereby, any security interest granted by Debtor to Fidelity Funding, Inc., a Texas corporation (other than the "Senior Creditor") pursuant to or in accordance with the Loan and Security Agreement and Mortgage, each dated the date hereof, between Debtor and the Senior Creditor (collectively, the "Senior Creditor Loan Documents), or any security interest otherwise specifically permitted by or in favor of Secured Party ("Permitted Liens) "), and the 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 Note HolderSecured Party.
(cb) 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 property of any kind which is included in the Collateraldefinitions set forth in Section 1 hereof, or intended so to cover any such interestbe, or in which has not been terminated the Debtor is named as or released by signs as debtor other than financing statements in favor of the secured party named therein Senior Creditor filed pursuant to the Senior Creditor Loan Documents, and so long as the Notes remain outstanding any amount remains unpaid on any Obligations of Debtor to Secured Party or any of the credit from Secured Obligations of the Party to Debtor remain unpaidis in use by or available to Debtor, the Debtor will not execute and there will not be on file in any public office any other such financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating except as shall pertain to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interest of the Note Holders hereby granted and provided for and (ii) with respect to Permitted Liens.
(c) All financing statements necessary to perfect the security interest granted hereby have been filed for record in the appropriate public offices.
(d) The chief executive office All inventory and chief equipment presently owned by Debtor is and will be kept at, and all inventory and equipment hereafter acquired by the Debtor will be kept at Debtor's principal place of business of the Debtor is located at the address of the Debtor listed on the signature page hereofin Angola, New York, and the Debtor promptly will not move its chief executive office and chief place notify Secured Party of business except to such new location as the Debtor may establish any change 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 addition to the Note Holders 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 above set forth. Notwithstanding the Note Holders may reasonably request, and (ii) with respect to such new locationforegoing, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected is understood and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(f) The name of the Debtor agreed that if for any reason inventory or equipment 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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 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%.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 kept or located at locations other than that is inconsistent with the Debtor's obligations under this Agreement, without the prior written consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing above listed or hereafter formedconsented to by Secured Party, before so doing, it Secured Party shall cause such person to sign nevertheless have and retain a guaranty and security agreement covering the secured obligationsinterest therein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aqua Care Systems Inc /De/)
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The Each Debtor agrees, and represents, warrants and covenantscovenants to the Secured Parties, which that:
(a) Such Debtor has the requisite corporate power and authority to enter into this Agreement and otherwise to carry out its obligations hereunder.
(b) Such Debtor’s exact legal name, jurisdiction of incorporation and chief executive office is set forth in the preamble above or Section 32 hereof, as applicable. Such Debtor shall give the Secured Parties prior written notice of any change in such Debtor’s name, identity or corporate structure, or of any reincorporation, reorganization or other action that may result in a change of the jurisdiction or organization of such Debtor.
(c) The execution, delivery and performance by such Debtor of this Agreement and the other Security Documents are within such Debtor’s powers, have been duly authorized by all necessary action, and do not contravene (i) such Debtor’s charter or bylaws or (ii) any law binding on or affecting such Debtor.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Debtor of any Security Document.
(e) Each Security Document constitutes the legal, valid and binding obligation of such Debtor, enforceable against such Debtor in accordance with its terms.
(f) Each Debtor shall cause each subsidiary of such Debtor to immediately become a party hereto (an “Additional Debtor”), by executing and delivering an Additional Debtor Joinder in substantially the form of Annex A attached hereto and comply with the provisions hereof applicable to the Debtors. Upon delivery of the foregoing to the Secured Party Representative, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtors, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have made the representations, warranties and covenants shall survive set forth herein as of the date of execution and delivery of this Agreementsuch Additional Debtor Joinder, as follows:
(a) This Agreement is made with full recourse and all references herein 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 of the Note Holder therein, the Debtor is, and as to Collateral acquired from time to time after the date hereof the 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 (other than Permitted Liens) and the Debtor 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 Note Holder.
(c) 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, which has not been terminated or released by the secured party named therein and so long as the Notes remain outstanding or any of the Secured Obligations of the Debtor remain unpaid, the 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 Note Holders 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 Note Holders 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 Note Holders may reasonably request, and (ii) with respect to such new location, it shall have taken such action, satisfactory to the Note Holders (including, without limitation, all action required by Section 7 hereof), to maintain the security interest of the Note Holders in the Receivables intended to be granted at all times fully perfected and in full force and effect.
(e) The Debtor has no Collateral located outside of locations set forth on Schedule 1 annexed hereto.
(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, without providing the Note Holders no less than 20 days' notice and making such filings as the Note Holders shall reasonably request. 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 Note Holders, for the benefit of the Debtor and the Note Holders, (ii) upon request by the Note Holders, promptly deliver the insurance policies or certificates thereof to the Note Holders, 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. Upon any failure of the Debtor to comply with its obligations pursuant to this Section 3(g), each Note Holder may at its option, and 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 the cost of either or both of which “Debtors” shall be a lien against the Collateral added deemed to the amount of the indebtedness secured hereby and payable on demand with interest at a rate per annum equal to 18%include each Additional Debtor.
(h) The Debtor hereby assigns to the Note Holders 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 (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 Note Holder 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 Note Holders 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 in the ordinary course of business and the disposition of obsolete or worn-out Equipment in the ordinary course of business.
(k) The Debtor will not assert against the Note Holders or any Note Holder 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.
(l) The Debtor will indemnify and hold the Note Holders and any Note Holder 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 sell or otherwise dispose of such lists except that the Debtor shall deliver copies thereof to each Note Holder 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 consent of the Note Holders.
(o) If the Debtor transfer any assets to any subsidiary or affiliate now existing or hereafter formed, before so doing, it shall cause such person to sign a guaranty and security agreement covering the secured obligations.
Appears in 1 contract
