Common use of Perfection of Lender’s Security Interest; Duty of Care Clause in Contracts

Perfection of Lender’s Security Interest; Duty of Care. 4.2.1 Until the termination of this Agreement, each Loan Party shall perform any and all steps and take all actions requested by Lender from time to time to perfect, maintain, protect, and enforce Lender’s security interest in, and Lien on, the Collateral, including (a) executing and delivering all appropriate documents and instruments as Lender may determine are necessary or desirable to perfect, preserve, or enforce Lender’s interest in the Collateral, including financing statements, all in form and substance satisfactory to Lender, (b) delivering and endorsing to Lender any warehouse receipts or other Documents covering that portion of the Collateral which, with Lender’s consent, may be located in warehouses and in respect of which warehouse receipts are issued, (c) upon the occurrence and the continuance of any Event of Default, transferring Inventory to warehouses approved by Lender, (d) placing notations on such Loan Party’s books of account to disclose Lender’s security interest and Lien therein, and (e) taking such other steps and actions as deemed necessary or desirable by Lender to perfect and enforce Lender’s security interest in, and Lien on, and other rights and interests in, the Collateral. Without limiting the foregoing, the Loan Parties shall promptly provide the Lender with written notice of all applications, if any, for new Copyrights, Patents or Trademarks (together with a listing of the issuance of registrations or letters on present applications), which new applications and issued registrations or letters shall be subject to the Lender's Lien as provided hereunder, together with, if requested by Lender, (a) a duly executed Notice of Security Interest in such new Copyrights, Patents or Trademarks in form and substance reasonably acceptable to the Lender, and (b) such other duly executed documents as the Lender may reasonably request in order to evidence the Lender's Lien in the Copyright, Patent or Trademark which is the subject of such new application; in each case other than actions which the Lender and such Loan Party reasonably agree that the cost of obtaining such a security interest or perfection in such Liens are excessive in relation to the benefit of the Lender of the security to be afforded thereby. 4.2.2 Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all assets of such Loan Party, whether now owned or hereafter acquired or arising, and all proceeds and products thereof, or (ii) as being of an equal or lesser scope or with greater detail, and (b) provide any other information required by Part 5 of Article 9 of the UCC or any other applicable law for the sufficiency or filing office acceptance of any financing statement or amendment, including whether such Loan Party is an organization, the type of organization and any organizational identification number issued to such Loan Party. Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to correct or complete, or to cause to be corrected or completed, any financing statements, continuation statements or other such documents as have been filed naming such Loan Party as debtor and Lender as secured party. Each Loan Party agrees to furnish any such information to Lender promptly upon request. At Lender’s request, each Loan Party will execute notices appropriate under any applicable Requirement of Law that Lender deems desirable to evidence, perfect, or protect its security interest in and other Liens on the Collateral in such form(s) as are satisfactory to Lender. Each Loan Party will pay the cost of filing all financing statements and other notices in all public offices where filing is deemed by Lender to be necessary or desirable to perfect, protect or enforce the security interest and Lien granted to Lender hereunder. Lender is hereby authorized to give notice to any creditor, landlord or any other Person as may be necessary or desirable under applicable laws to evidence, protect, perfect, or enforce the security interest and Lien granted to Lender in the Collateral. 4.2.3 To protect, perfect, or enforce, from time to time, Lender’s rights or interests in the Collateral, Lender may, in its discretion (but without any obligation to do so), (a) discharge any Liens (other than Permitted Liens so long as no Event of Default has occurred) at any time levied or placed on the Collateral, (b) pay any insurance to the extent the Loan Parties have failed to timely pay the same, (c) maintain guards where any Collateral is located if an Event of Default has occurred and is continuing, and (d) obtain any record from any service bureau and pay such service bureau the cost thereof. All costs and expenses incurred by Lender in exercising its discretion under this Section 4.2.3 will be part of the Obligations, payable on Lender’s demand and secured by the Collateral. 4.2.4 Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Each Loan Party agrees that Lender has no obligation to take steps to preserve rights against any prior parties. 4.2.5 At any time and from time to time, Lender, in its own name or in the name of others, may periodically communicate with each Loan Party’s Account Debtors, customers and other obligors to verify with them, to Lender’s satisfaction, the existence, amount and terms of any sums owed by such Account Debtors, customers or other obligors to such Loan Party and the nature of any such Account Debtor’s, customer’s or other obligor’s relationship with such Loan Party. 4.2.6 If any Loan Party shall at any time hold or acquire a Commercial Tort Claim, such Loan Party shall immediately notify Lender in a writing signed by such Loan Party of the particulars thereof and grant to Lender in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Lender.

Perfection of Lender’s Security Interest; Duty of Care. 4.2.1 Until the termination of this Agreement, each Loan Party shall perform any and all steps and take all actions requested by Lender from time to time to perfect, maintain, protect, and enforce Lender’s security interest in, and Lien on, the Collateral, including (a) executing and delivering all appropriate documents and instruments as Lender may determine are necessary or desirable to perfect, preserve, or enforce Lender’s interest in the Collateral, including financing statements, all in form and substance satisfactory to Lender, (b) delivering and endorsing to Lender any warehouse receipts or other Documents covering that portion of the Collateral which, with Lender’s consent, may be located in warehouses and in respect of which warehouse receipts are issued, (c) upon the occurrence and the continuance of any Event of Default, transferring Inventory to warehouses approved by Lender, (d) placing notations on such Loan Party’s books of account to disclose Lender’s security interest and Lien therein, and (e) taking such other steps and actions as deemed necessary or desirable by Lender to perfect and enforce Lender’s security interest in, and Lien on, and other rights and interests in, the Collateral. Without limiting the foregoing, the Loan Parties shall promptly provide the Lender with written notice of all applications, if any, for new Copyrights, Patents or Trademarks (together with a listing of the issuance of registrations or letters on present applications), which new applications and issued registrations or letters shall be subject to the Lender's ’s Lien as provided hereunder, together with, if requested by Lender, (a) a duly executed Notice of Security Interest in such new Copyrights, Patents or Trademarks in form and substance reasonably acceptable to the Lender, and (b) such other duly executed documents as the Lender may reasonably request in order to evidence the Lender's ’s Lien in the Copyright, Patent or Trademark which is the subject of such new application; in each case other than actions which the Lender and such Loan Party reasonably agree that the cost of obtaining such a security interest or perfection in such Liens are excessive in relation to the benefit of the Lender of the security to be afforded thereby. 4.2.2 Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all assets of such Loan Party, whether now owned or hereafter acquired or arising, and all proceeds and products thereof, or (ii) as being of an equal or lesser scope or with greater detail, and (b) provide any other information required by Part 5 of Article 9 of the UCC or any other applicable law for the sufficiency or filing office acceptance of any financing statement or amendment, including whether such Loan Party is an organization, the type of organization and any organizational identification number issued to such Loan Party. Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to correct or complete, or to cause to be corrected or completed, any financing statements, continuation statements or other such documents as have been filed naming such Loan Party as debtor and Lender as secured party. Each Loan Party agrees to furnish any such information to Lender promptly upon request. At Lender’s request, each Loan Party will execute notices appropriate under any applicable Requirement of Law that Lender deems desirable to evidence, perfect, or protect its security interest in and other Liens on the Collateral in such form(s) as are satisfactory to Lender. Each Loan Party will pay the cost of filing all financing statements and other notices in all public offices where filing is deemed by Lender to be necessary or desirable to perfect, protect or enforce the security interest and Lien granted to Lender hereunder. Lender is hereby authorized to give notice to any creditor, landlord or any other Person as may be necessary or desirable under applicable laws to evidence, protect, perfect, or enforce the security interest and Lien granted to Lender in the Collateral. 4.2.3 To protect, perfect, or enforce, from time to time, Lender’s rights or interests in the Collateral, Lender may, in its discretion (but without any obligation to do so), (a) discharge any Liens (other than Permitted Liens so long as no Event of Default has occurred) at any time levied or placed on the Collateral, (b) pay any insurance to the extent the Loan Parties have failed to timely pay the same, (c) maintain guards where any Collateral is located if an Event of Default has occurred and is continuing, and (d) obtain any record from any service bureau and pay such service bureau the cost thereof. All costs and expenses incurred by Lender in exercising its discretion under this Section 4.2.3 will be part of the Obligations, payable on Lender’s demand and secured by the Collateral. 4.2.4 Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Each Loan Party agrees that Lender has no obligation to take steps to preserve rights against any prior parties. 4.2.5 At any time and from time to time, Lender, in its own name or in the name of others, may periodically communicate with each Loan Party’s Account Debtors, customers and other obligors to verify with them, to Lender’s satisfaction, the existence, amount and terms of any sums owed by such Account Debtors, customers or other obligors to such Loan Party and the nature of any such Account Debtor’s, customer’s or other obligor’s relationship with such Loan Party. 4.2.6 If any Loan Party shall at any time hold or acquire a Commercial Tort Claim, such Loan Party shall immediately notify Lender in a writing signed by such Loan Party of the particulars thereof and grant to Lender in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Lender.

Perfection of Lender’s Security Interest; Duty of Care. 4.2.1 (a) Until the termination of this Agreement, each Loan Party shall perform any and all steps and take all actions reasonably requested by Lender from time to time to perfect, maintain, protect, and enforce Lender’s security interest in, and Lien on, the Collateral, including (ai) executing and delivering all appropriate documents and instruments as Lender may determine are necessary or desirable to perfect, preserve, or enforce Lender’s interest in the Collateral, including financing statements, all in form and substance reasonably satisfactory to Lender, (bii) delivering and endorsing to Lender any warehouse receipts or other Documents covering that portion of the Collateral which, with Lender’s consent, may be a book value in excess of $250,000 located in warehouses and in respect of which warehouse receipts are issuedat any warehouse, (ciii) upon the occurrence and during the continuance of any Event of Default, transferring Inventory to warehouses approved by Lender, (div) placing notations on such Loan Party’s books of account to disclose Lender’s security interest and Lien therein, and (ev) taking such other steps and actions as deemed reasonably necessary or desirable by Lender to perfect and enforce Lender’s security interest in, and Lien on, and other rights and interests in, the Collateral. Without limiting the foregoing, the Loan Parties shall promptly provide the Lender with written notice of all applications, if any, for new Copyrights, Patents or Trademarks (together with a listing of the issuance of registrations or letters on present applications), which new applications and issued registrations or letters shall be subject to the Lender's Lien as provided hereunder, together with, if requested by Lender, (a) a duly executed Notice of Security Interest in such new Copyrights, Patents or Trademarks in form and substance reasonably acceptable to the Lender, and . (b) such other duly executed documents as the Lender may reasonably request in order to evidence the Lender's Lien in the Copyright, Patent or Trademark which is the subject of such new application; in each case other than actions which the Lender and such Loan Party reasonably agree that the cost of obtaining such a security interest or perfection in such Liens are excessive in relation to the benefit of the Lender of the security to be afforded thereby. 4.2.2 Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements and amendments thereto that (ai) indicate the Collateral (iA) as all or substantially all of the assets of such Loan PartyParty (other than Intellectual Property), whether now owned or hereafter acquired or arising, and all proceeds and products thereof, or (iiB) as being of an equal or lesser scope or with greater detail, and (bii) provide any other information required by Part 5 of Article 9 of the UCC or any other applicable law for the sufficiency or filing office acceptance of any financing statement or amendment, including whether such Loan Party is an organization, the type of organization and any organizational identification number issued to such Loan Party. Each Loan Party hereby irrevocably authorizes Lender at any time and from time to time to correct or complete, or to cause to be corrected or completed, any financing statements, continuation statements or other such documents as have been filed naming such Loan Party as debtor and Lender as secured party. Upon the termination of this Agreement, termination of all commitments by the Lender to lend or provide financial accommodations to the Loan Parties and repayment in full of all Obligations (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted), the Lender agrees, subject to receipt of payoff letter or other similar documentation in form and substance reasonably acceptable to the Lender and duly executed and delivered by the Loan Parties, to thereafter prepare and file, or to authorize in such payoff letter the Loan Parties and/or their designee to thereafter prepare and file, such UCC termination statements related to the financing statements filed by Lender to perfect the security interests in the Collateral granted hereby. Each Loan Party agrees to furnish any such information to Lender promptly upon request. At Lender’s request, each Loan Party will execute notices appropriate under any applicable Requirement of Law that Lender deems desirable necessary to evidence, perfect, or protect its security interest in and other Liens on the Collateral in such form(s) as are satisfactory to Lender. Each Loan Party will pay the cost of filing all financing statements and other notices in all public offices where filing is deemed by Lender to be necessary or desirable to perfect, protect or enforce the security interest and Lien granted to Lender hereunder. Lender is hereby authorized to give notice to any creditor, landlord or any other Person as may be necessary or desirable under applicable laws to evidence, protect, perfect, or enforce the security interest and Lien granted to Lender in the Collateral. 4.2.3 (c) To protect, perfect, or enforce, from time to time, Lender’s rights or interests in the Collateral, Lender may, in its discretion (but without any obligation to do so), (ai) discharge any Liens (other than Permitted Liens so long as no Event of Default has occurredshall exist and be continuing) at any time levied or placed on the Collateral, (bii) pay any insurance to the extent the Loan Parties have failed to timely pay the same, (ciii) maintain guards where any Collateral is located if an Event of Default has occurred and is continuing, and (div) obtain any record from any service bureau and pay such service bureau the cost thereof. All reasonable out-of-pocket costs and expenses incurred by Lender in exercising its discretion under this Section 4.2.3 4.2(c) will be part of the Obligations, payable on upon Lender’s demand and secured by the Collateral. 4.2.4 (d) Lender shall have no duty of care with respect to the Collateral except that Lender shall exercise reasonable care with respect to the Collateral in Lender’s custody. Each Loan Party agrees that Lender has no obligation to take steps to preserve rights against any prior parties. 4.2.5 (e) At any time and from time to timetime during the existence of an Event of Default, Lender, in its own name or in the name of others, may may, periodically communicate with each Loan Party’s Account Debtors, customers and other obligors to verify with them, to Lender’s satisfaction, the existence, amount and terms of any sums owed by such Account Debtors, customers or other obligors to such Loan Party and the nature of any such Account Debtor’s, customer’s or other obligor’s relationship with such Loan Party. 4.2.6 (f) If any Loan Party shall at any time hold or acquire a Commercial Tort ClaimClaim with a value reasonably estimated to be in excess of $250,000, such Loan Party shall immediately notify Lender in a writing signed by such Loan Party of the particulars thereof thereof, which writing may be in the form of an update to Schedule 4.1, and grant Lender shall be deemed to Lender in such writing have a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Lender.