Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. (b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, under any Receivables and Related Contracts of the assignment of such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereof. (c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 2 contracts
Samples: Debtor in Possession Credit and Security Agreement, Debtor in Possession Credit and Security Agreement (Ata Holdings Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s 's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under the contracts its post-petition Contractual Obligations to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contractual Obligations by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contractual Obligations pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contractual Obligations, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contractual Obligations, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 11.5 hereof, the Administrative Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party's customary procedures, and the Receivables Administrative Agent may, upon the occurrence and Related Contracts. In connection with such collectionsduring the continuation of any Event of Default and without notice, such Loan Party may take other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contractual Obligations of the Borrower or any other Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any other Loan Party and notify obligors in respect of Chattel Paper of the Borrower or any other Loan Party that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contractual Obligations, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent, the Borrower or such other Loan Party will so notify such Account Debtors, such parties to Contractual Obligations, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contractual Obligations, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related ContractsAccounts, to adjustContractual Obligations, settle Instruments, Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 2 contracts
Samples: Secured Debtor in Possession Credit Agreement (Friedmans Inc), Revolving Credit Agreement (Friedmans Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything Anything herein to the contrary notwithstanding, (i) each Loan Party the Borrower shall remain liable under each of the contracts Mortgage Loan Documents to which it is a party to observe and agreements included perform all the conditions and obligations to be observed and performed by it thereunder, all in such Loan Party’s Collateral accordance with and pursuant to the extent set forth therein to perform all terms and provisions of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if each such contracts or agreements are assumed), (ii) the exercise by the Mortgage Loan Document. The Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Mortgage Loan Document by reason of or arising out of this Credit Agreement or the receipt by the Lender of any other payment relating to such Mortgage Loan DocumentDocument pursuant hereto, nor shall any Secured Party the Lender be obligated in any manner to perform any of the obligations of the Borrower under or duties pursuant to any Mortgage Loan Document, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Mortgage Loan Party thereunder Document, to present or file any claim, to take any action to collect or enforce any claim for performance or to collect the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under Upon the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or request of the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon time after the occurrence and during the continuance of an Event of Default, the Borrower shall notify parties to notify the obligors, under any Receivables and Related Contracts of Mortgage Loan Documents to which it is a party that the assignment of such Receivables and Related Contracts Mortgage Loan Documents have been assigned to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder that payments in respect thereof shall be made directly to the Lender. The Lender andmay in its own name or in the name of others communicate with parties to the Mortgage Loan Documents to verify with them to its satisfaction the existence, upon such notification amount and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Mortgage Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofDocuments.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 2 contracts
Samples: Interim Warehouse and Security Agreement (First Alliance Corp /De/), Interim Warehouse and Security Agreement (First Alliance Corp /De/)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed)executed, (ii) the exercise by the Lender Administrative Agent of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, Collateral and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables Accounts and Related Contracts. In connection with such collections, such Loan Party may take (and, and at Lenderthe Administrative Agent’s reasonable direction, will take) such action as such Loan Party or the Lender Administrative Agent may reasonably deem necessary or advisable to enforce collection of the Receivables Accounts and Related Contracts; provided, however, that, subject to any requirement of notice provided in the DIP Financing Orders or in Section 8.026.01, the Lender Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, obligors under any Receivables Accounts and Related Contracts of the assignment of such Receivables Accounts and Related Contracts to the Lender Administrative Agent and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender Administrative Agent and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables Accounts and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables Accounts and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial CodeUCC. Upon and during the exercise by the Lender Administrative Agent on behalf of the Lenders of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables Accounts and Related Contracts of such Loan Party shall be received in trust for the benefit of the Administrative Agent hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender Administrative Agent in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with the Administrative Agent and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable Account or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables Accounts and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Each Initial Lender shall have the right to make test verification of the Receivables Accounts (other than Accounts that any Loan Party is required to maintain as “classified”) in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the any Initial Lender may reasonably require in connection therewith.
Appears in 2 contracts
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP), Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code)It is expressly agreed by Borrower that, and anything herein to the contrary notwithstanding, (i) each Loan Party Borrower shall remain liable under each of its Contracts and each of its Licenses to observe and perform all the contracts conditions and agreements included in such Loan Party’s Collateral obligations to the extent set forth therein to be observed and performed by it thereunder and Borrower shall perform all of its duties and obligations thereunder thereunder, all in accordance with and pursuant to the same extent as if this Credit Agreement had not been executed (including paying cure costs if terms and provisions of each such contracts Contract or agreements are assumed), (ii) the exercise by the License. Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Security Agreement or the granting to Pledgee of a security interest therein or the receipt by Pledgee or any other Loan DocumentLender of any payment relating to any Contract or License pursuant hereto, nor shall Pledgee or any Secured Party Lender be required or obligated in any manner to perform or fulfill any of the obligations of Borrower under or duties pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any Loan Party thereunder payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Pledgee authorizes Borrower to collect its Accounts and Instruments provided that such collection is performed in this subsection (b)a prudent and businesslike manner, each Loan Party will and Pledgee may, upon the occurrence and during the continuation of any Event of Default and without notice, limit or terminate said authority at any time. Such Proceeds shall continue to collectbe collateral security for all of the Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided. At any time, Lender shall be entitled to apply all or any part of the funds on deposit in said account to the principal of or interest on or both in respect of any of the Secured Obligations in accordance with the provisions of Section 8(d) hereof and any part of such funds which Lender elect not so to apply and deemed not required as collateral security for the Secured Obligations shall be paid over from time to time by Lender to Borrower. If an Event of Default has occurred and is continuing, at its own expensethe request of Pledgee, Borrower shall deliver to Pledgee all original and other documents evidencing, and relating to, the sale and delivery of such Inventory or the performance of labor or service which created such Accounts, including, without limitation, all amounts due or to become due such Loan Party under the Receivables original orders, invoices and Related Contracts. In connection with such collections, such Loan Party may take (shipping receipts; and, prior to the occurrence of an Event of Default, Borrower shall deliver photocopies thereof to Pledgee at Lender’s direction, will takeits request.
(c) such action as such Loan Party or the Lender Pledgee may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon the occurrence and during the continuance of any Event of Default (whether or not waived), after first notifying Borrower of its intention to do so, notify Account Debtors of Borrower, parties to the Contracts of Borrower, obligors of Instruments of Borrower and obligors in respect of Chattel Paper of Borrower that the Accounts and the right, title and interest of Borrower in and under such Contracts, such Instruments and such Chattel Paper have been assigned to Pledgee and Lender and that payments shall be made directly to Pledgee. Upon the request of Pledgee, Borrower will so notify such Account Debtors, parties to such Contracts, obligors of such Instruments and -------------------------------------------------------------------------------- SECURITY AGREEMENT - PAGE 6 (HW PARTNERS/ORIX GLOBAL) obligors in respect of such Chattel Paper. Pledgee may at any time in its own name or in the name of others communicate with such Account Debtors, parties to such Contracts, obligors of such Instruments and obligors in respect of such Chattel Paper to verify with such Persons to Pledgee's satisfaction the existence, amount and terms of any such Accounts, Contracts, Instruments or Chattel Paper.
(d) Upon reasonable prior notice to Borrower (unless an Event of Default, to notify the obligors, under any Receivables Default has occurred and Related Contracts of the assignment of such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereofis continuing, in the same manner and to the same extent as such Loan Party might have donewhich case no notice is necessary), and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Lender Pledgee shall have the right to make test verification verifications of the Receivables Accounts, Instruments and Chattel Papers and physical verifications of the Inventory in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party Borrower agrees to furnish all such assistance and information as the Lender Pledgee may reasonably require in connection therewith. Borrower at its expense will cause certified independent public accountants satisfactory to Pledgee to prepare and deliver to Pledgee at any time and from time to time promptly upon Pledgee's request, the following reports: (i) a reconciliation of all its Accounts, Instruments and Chattel Paper, (ii) an aging of all its Accounts, Instruments and Chattel Paper, (iii) trial balances, and (iv) a test verification of such Accounts, Instruments and Chattel Paper as Lender may request. Borrower at its expense will cause certified independent public accountants satisfactory to Pledgee to prepare and deliver to Pledgee the results of the annual physical verification of its Inventory made or observed by such accountants.
Appears in 1 contract
Samples: Securities Purchase Agreement (Eventures Group Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no other Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 11.5 hereof, the Administrative Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party’s customary procedures, and the Receivables Administrative Agent may, upon the occurrence and Related Contracts. In connection with such collectionsduring the continuation of any Event of Default and without notice, such Loan Party may take other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any other Loan Party and notify obligors in respect of Chattel Paper of the Borrower or any other Loan Party that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent, the Borrower or such other Loan Party shall so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent’s reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender shall have Administrative Agent may, but has no obligation to, or if directed by the right to Requisite Lenders shall, make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith. Each Loan Party, at its expense, shall cause certified independent public accountants satisfactory to the Requisite Lenders to prepare and deliver to the Administrative Agent at any time and from time to time, promptly upon the Administrative Agent’s request, the following reports: (i) a reconciliation of all Accounts of such Loan Party, (ii) an aging of all Accounts of such Loan Party, (iii) trial balances, and (iv) a test verification of such Accounts as the Administrative Agent may request. The Administrative Agent shall may, but has no obligation to, or if directed by the Requisite Lenders shall, at any time conduct periodic audits of the Accounts of any Loan Party at the expense of the Borrower.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Multiple Draw Term Loan Agreement (Pliant Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Credit Party’s 's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Credit Party that, anything herein to the contrary notwithstanding, (i) each Loan such Credit Party shall remain liable under the contracts each of its Contracts and agreements included in such Loan Party’s Collateral each of its Licenses to the extent set forth therein to observe and perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder, unless such Credit Party determines in its reasonable good faith judgment that such Contract or License is no longer valuable to such Credit Party's business, economically or otherwise. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Agreement or any other Loan Document, nor shall the granting herein of a Lien thereon or the receipt by Administrative Agent or any Secured Party of any payment relating to any Contract or License pursuant hereto. Neither Administrative Agent nor any Secured Party shall be required or obligated in any manner to perform or fulfill any of the obligations or duties of any Loan Credit Party thereunder under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claims, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 10.5 hereof, the Administrative Agent authorizes each Credit Party to collect its Accounts, provided that such collection is performed in accordance with such Credit Party's customary procedures, and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection the Final Order, limit or terminate said authority at any time.
(b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Final Order, the Lender shall have the right Administrative Agent may at any timetime after an Event of Default has occurred and is continuing without prior notice to any Credit Party, notify Account Debtors and other Persons obligated on the Collateral that Administrative Agent has a security interest therein, and that payments shall be made directly to Administrative Agent. Subject to any requirement of notice provided in the Final Order, upon the reasonable request of Administrative Agent, each Credit Party shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on the Collateral, the affected Credit Party shall not give any contrary instructions to such Account Debtor or other Person without Administrative Agent's prior written consent. Subject to any requirement of notice provided in the Final Order, upon the occurrence and during the continuance continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, Instruments, Investment Property or Chattel Paper.
(d) Subject to adjustany requirement of notice provided in the Final Order, settle or compromise the amount or payment thereofAdministrative Agent may at any time in Administrative Agent's own name, in the same manner and name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with Account Debtors to verify with such Persons, to Administrative Agent's satisfaction, the same extent as such Loan Party might have doneexistence, amount, terms of, and any other matter relating to, Accounts and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Administrative Agent shall not do any of the foregoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to otherwise exercise all rights be present. If an Event of Default shall have occurred and be continuing, each Credit Party, at its own expense, shall cause the independent certified public accountants then engaged by such Credit Party to prepare and deliver to Administrative Agent and each Secured Party at any time and from time to time promptly upon Administrative Agent's written request the following reports with respect to each Credit Party: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Receivables Accounts as Administrative Agent may request. Administrative Agent may at any time in Administrative Agent's own name, in the name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with parties to Contracts and Related Contractsobligors in respect of Instruments to verify with such Persons, includingto Administrative Agent's satisfaction, without limitationthe existence, those set forth in Section 9-607 amount, terms of, and any other matter relating to, Instruments, Chattel Paper and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Uniform Commercial Code. Upon and during the exercise by the Lender of Administrative Agent shall not do any of the remedies described in the proviso of the immediately preceding sentenceforegoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to be present. Each Credit Party, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunderat its own expense, shall be segregated from other funds deliver to Administrative Agent the results of each physical verification, if any, which such Loan Credit Party and shall be forthwith paid over to the Lender may in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereofits discretion have made, or allow caused any credit other Person to have made on its behalf, of all or discount thereon. No Loan Party will permit or consent to the subordination any portion of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofInventory.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Debtor in Possession Credit Agreement (Delta Air Lines Inc /De/)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s 's rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 11.5 hereof, the Administrative Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party's customary procedures, and the Receivables Administrative Agent may, upon the occurrence and Related Contracts. In connection with such collectionsduring the continuation of any Event of Default and without notice, such Loan Party may take other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in and Section 8.029.2 hereof, the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any other Loan Party and notify obligors in respect of Chattel Paper of the Borrower or any other Loan Party that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent, the Borrower or such other Loan Party will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Administrative Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith.
Appears in 1 contract
Samples: Revolving Credit Agreement (Warnaco Group Inc /De/)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under its Contracts to observe and perform the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties conditions and obligations thereunder to be observed and performed NY 72168370v12 by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no other Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 11.5 hereof, the Administrative Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party’s customary procedures, and the Receivables Administrative Agent may, upon the occurrence and Related Contracts. In connection with such collectionsduring the continuation of any Event of Default and without notice, such Loan Party may take other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have Administrative Agent may, and at the right direction of the Requisite Lenders shall, at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any other Loan Party and notify obligors in respect of Chattel Paper of the Borrower or any other Loan Party that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent (at the direction of the Requisite Lenders), the Borrower or such other Loan Party shall so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent’s reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Administrative Agent shall, at the direction of the Requisite Lenders, if a Default shall have the right to occurred and is continuing, make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith. Each Loan Party, at its expense, shall cause certified independent public accountants satisfactory to the Requisite Lenders to prepare and deliver to the Administrative Agent at any time and from time to time, promptly upon the Administrative Agent’s request, the following reports: (i) a reconciliation of all Accounts of such Loan Party, (ii) an aging of all NY 72168370v12 Accounts of such Loan Party, (iii) trial balances, and (iv) a test verification of such Accounts as the Administrative Agent may request. The Administrative Agent shall at any time, if directed by the Requisite Lenders, conduct periodic audits of the Accounts of any Loan Party at the expense of the Borrower.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Multiple Draw Term Loan Agreement (Greenville Tube CO)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed)executed, (ii) the exercise by the Lender Administrative Agent of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, Collateral and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables Accounts and Related Contracts. In connection with such collections, such Loan Party may take (and, upon the occurrence and during the continuance of an Event of Default, at Lenderthe Administrative Agent’s direction, will take) such action as such Loan Party or the Lender Administrative Agent may reasonably deem necessary or advisable to enforce collection of the Receivables Accounts and Related Contracts; provided, however, that, subject to any requirement of notice provided in the DIP Financing Orders or in Section 8.026.01, the Lender Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, obligors under any Receivables Accounts and Related Contracts of the assignment of such Receivables Accounts and Related Contracts to the Lender Administrative Agent and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender Administrative Agent and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables Accounts and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables Accounts and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial CodeUCC. Upon and during the exercise by the Lender Administrative Agent on behalf of the Lenders of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables Accounts and Related Contracts of such Loan Party shall be received in trust for the benefit of the Administrative Agent hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender Administrative Agent in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with the Administrative Agent and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable Account or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables Accounts and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Each Initial Lender shall have the right to make test verification of the Receivables Accounts (other than Accounts that any Loan Party is required to maintain as “classified”) in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the any Initial Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s 's rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s 's Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s 's direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, under any Receivables and Related Contracts of the assignment of such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with the and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Debtor in Possession Credit and Security Agreement (Ata Holdings Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under its Contractual Obligations incurred after the contracts Petition Date or assumed with the consent of the Administrative Agent and agreements included in such Loan Party’s Collateral Bankruptcy Court approval (which may be pursuant to a Plan confirmed by the extent set forth therein Bankruptcy Court) to observe and perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contractual Obligations by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contractual Obligations pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contractual Obligations, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contractual Obligations, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 11.5 hereof, the Administrative Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party’s customary procedures, and the Receivables Administrative Agent may, upon the occurrence and Related Contractsduring the continuation of any Event of Default and without notice, other than any requirement of notice provided in the Orders, limit or terminate said authority at any time. In connection with such collections, such Loan Party may take CREDIT AGREEMENT CONSTAR INTERNATIONAL INC.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02(which shall only be applicable until the Conversion Date), the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contractual Obligations of the Borrower or any other Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any other Loan Party and notify obligors in respect of Chattel Paper of the Borrower or any other Loan Party that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contractual Obligations, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent, the Borrower or such other Loan Party will so notify such Account Debtors, such parties to Contractual Obligations, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contractual Obligations, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent’s reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related ContractsAccounts, to adjustContractual Obligations, settle Instruments, Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Rights of Lender; Limitations on Lender’s Obligations. Subject to Section 9.9, the expiration of the applicable Standstill Period and the giving of notice as required by the Financing Order and in any event not inconsistent with the Applicable Budget:
(a) Subject to each Loan PartyGrantor’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise be observed and performed by the it thereunder. The Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Lender of a security interest therein or the receipt by the Lender of any other Loan Documentpayment relating to any Contract pursuant hereto, nor shall the Lender be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue Subject to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.029.5, the Lender shall have authorizes each Grantor to collect its Accounts, provided that such collection is performed in accordance with such Grantor’s customary procedures, and the right Lender may, upon the occurrence and during the continuation of any Lender Termination Event and without notice limit or terminate said authority at any time.
(c) The Lender may at any time, upon the occurrence and during the continuance continuation of an Event any Lender Termination Event, after first notifying the Borrower of Defaultits intention to do so, to notify Account Debtors, notify the obligors, under any Receivables and Related other parties to the Contracts of the assignment Borrower or any other Grantor, notify obligors of Instruments and Investment Property of the Borrower or any other Grantor and notify obligors in respect of Chattel Paper of the Borrower or any other Grantor that the right, title and interest of the Borrower or such Receivables Grantor in and Related Contracts under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder that payments shall be made directly to the Lender andLender. Upon the request of the Lender, upon the Borrower or such notification and at the expense other Grantor will so notify such Account Debtors, such parties to Contracts, obligors of such Loan PartyInstruments and Investment Property and obligors in respect of such Chattel Paper. Upon the occurrence and during the continuation of a Lender Termination Event, the Lender may in its own name, or in the name of others, communicate with such parties to enforce collection such Accounts, Contracts, Instruments, Investment Property and Chattel Paper to verify with such Persons to the Lender’s reasonable satisfaction the existence, amount and terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Globalstar Lp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Credit Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Credit Party that, anything herein to the contrary notwithstanding, (i) each Loan such Credit Party shall remain liable under each of its Contracts and each of its Licenses to observe and perform all the contracts conditions and agreements included obligations to be observed and performed by it thereunder, unless such Credit Party determines in its reasonable good faith judgment that such Loan Contract or License is no longer valuable to such Credit Party’s Collateral to business, economically or otherwise. Neither the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Agreement or any other Loan Document, nor shall the granting herein of a Lien thereon or the receipt by Administrative Agent or any Secured Party of any payment relating to any Contract or License pursuant hereto. Neither Administrative Agent nor any Secured Party shall be required or obligated in any manner to perform or fulfill any of the obligations or duties of any Loan Credit Party thereunder under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claims, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 10.5 hereof, the Administrative Agent authorizes each Credit Party to collect its Accounts, provided that such collection is performed in accordance with such Credit Party’s customary procedures, and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection the Final Order, limit or terminate said authority at any time.
(b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Final Order, the Lender shall have the right Administrative Agent may at any timetime after an Event of Default has occurred and is continuing without prior notice to any Credit Party, notify Account Debtors and other Persons obligated on the Collateral that Administrative Agent has a security interest therein, and that payments shall be made directly to Administrative Agent. Subject to any requirement of notice provided in the Final Order, upon the reasonable request of Administrative Agent, each Credit Party shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on the Collateral, the affected Credit Party shall not give any contrary instructions to such Account Debtor or other Person without Administrative Agent’s prior written consent. Subject to any requirement of notice provided in the Final Order, upon the occurrence and during the continuance continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent’s reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, Instruments, Investment Property or Chattel Paper.
(d) Subject to adjustany requirement of notice provided in the Final Order, settle or compromise the amount or payment thereofAdministrative Agent may at any time in Administrative Agent’s own name, in the same manner and name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with Account Debtors to verify with such Persons, to Administrative Agent’s satisfaction, the same extent as such Loan Party might have doneexistence, amount, terms of, and any other matter relating to, Accounts and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Administrative Agent shall not do any of the foregoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to otherwise exercise all rights be present. If an Event of Default shall have occurred and be continuing, each Credit Party, at its own expense, shall cause the independent certified public accountants then engaged by such Credit Party to prepare and deliver to Administrative Agent and each Secured Party at any time and from time to time promptly upon Administrative Agent’s written request the following reports with respect to each Credit Party: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Receivables Accounts as Administrative Agent may request. Administrative Agent may at any time in Administrative Agent’s own name, in the name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with parties to Contracts and Related Contractsobligors in respect of Instruments to verify with such Persons, includingto Administrative Agent’s satisfaction, without limitationthe existence, those set forth in Section 9-607 amount, terms of, and any other matter relating to, Instruments, Chattel Paper and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Uniform Commercial Code. Upon and during the exercise by the Lender of Administrative Agent shall not do any of the remedies described in the proviso of the immediately preceding sentenceforegoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to be present. Each Credit Party, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunderat its own expense, shall be segregated from other funds deliver to Administrative Agent the results of each physical verification, if any, which such Loan Credit Party and shall be forthwith paid over to the Lender may in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereofits discretion have made, or allow caused any credit other Person to have made on its behalf, of all or discount thereon. No Loan Party will permit or consent to the subordination any portion of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofInventory.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Delta Air Lines Inc /De/)
Rights of Lender; Limitations on Lender’s Obligations. Subject to Section 9.10, the expiration of the applicable Standstill Period and the giving of notice as required by the Financing Order and in any event not inconsistent with the Approved Budget:
(a) Subject to each Loan Party’s Grantor's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise be observed and performed by the it thereunder. The Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Lender of a security interest therein or the receipt by the Lender of any other Loan Documentpayment relating to any Contract pursuant hereto, nor shall the Lender be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue Subject to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.029.5, the Lender shall have authorizes each Grantor to collect its Accounts, provided that such collection is performed in accordance with such Grantor's customary procedures, and the right Lender may, upon the occurrence and during the continuation of any Lender Termination Event and without notice limit or terminate said authority at any time.
(c) The Lender may at any time, upon the occurrence and during the continuance continuation of any Lender Termination Event, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Grantor, notify obligors of Instruments and Investment Property of the Borrower or any other Grantor and notify obligors in respect of Chattel Paper of the Borrower or any other Grantor that the right, title and interest of the Borrower or such Grantor in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Lender and that payments shall be made directly to the Lender. Upon the request of the Lender, the Borrower or such other Grantor will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Upon the occurrence and during the continuation of an Event of Default, the Lender may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Lender's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Globalstar Lp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Pledged Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender Collateral Agent of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Pledged Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Pledged Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lenderthe Collateral Agent’s direction, will take) such action as such Loan Party or the Lender Collateral Agent may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender Collateral Agent shall have the right at any time, upon the occurrence and during the continuance of an a Collateral Enforcement Event of Default, to notify the obligors, obligors under any Receivables and Related Contracts of the assignment of such Receivables and Related Contracts to the Lender Collateral Agent and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender Collateral Agent and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender Collateral Agent on behalf of the Lenders of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender Collateral Agent in the same form as so received (with any necessary endorsementindorsement) to be deposited in a collateral account maintained with the Collateral Agent and applied as provided in Section 9.07(b10.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Lender Collateral Agent shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender Collateral Agent may reasonably require in connection therewith.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Republic Airways Holdings Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s Grantor's rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and it is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts that may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection Subject to Section 11.5 (bPerformance by Agent of the Loan Parties' Obligations), the Administrative Agent authorizes each Loan Party will continue Grantor to collect, at collect its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take Accounts (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, thatthat such collection shall be performed in accordance with such Grantor's customary procedures), subject and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(c) Subject to any requirement of notice provided in the Orders, the Administrative Agent may at any time, upon the occurrence and during the continuation of any Event of Default, after first notifying the Borrowers of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of any Borrower or any other Grantor, notify obligors of Instruments and Investment Property of any Borrower or any other Grantor and notify obligors in respect of Chattel Paper of any Borrower or any other Grantor that the right, title and interest of such Borrower or such Grantor in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders or approval by the Bankruptcy Court, upon the request of the Administrative Agent, such Borrower or such other Grantor shall so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in Section 8.02, respect of such Chattel Paper. Subject to any requirement of notice provided in the Lender shall have Orders or approval by the right at any timeBankruptcy Court, upon the occurrence and during the continuance continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's 126 Credit Agreement EXIDE TECHNOLOGIES reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Administrative Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party Grantor agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith. Each Grantor, at its expense, shall cause certified independent public accountants satisfactory to the Requisite Lenders to prepare and deliver to the Administrative Agent at any time and from time to time, promptly upon the Administrative Agent's request, the following reports: (i) a reconciliation of all Accounts of such Grantor, (ii) an aging of all Accounts of such Grantor, (iii) trial balances and (iv) a test verification of such Accounts as the Administrative Agent may request. The Administrative Agent shall have the right at any time to conduct periodic audits of the Accounts of any Grantor at the expense of the Borrowers.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Exide Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under It is expressly agreed by the Bankruptcy Code (including Section 365 of the Bankruptcy Code)Borrower that, and anything herein to the contrary notwithstanding, (i) each Loan Party the Borrower shall remain liable under the contracts each of its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party Lenders shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement or any Agreement, the other Loan DocumentDocuments, or the granting to the Agent for the benefit of the Lenders of a Lien therein or the receipt by the Agent or the Lenders of any payment relating to any Contract pursuant hereto, nor shall the Agent or any Secured Party of the Lenders be required or obligated in any manner to perform or fulfill any of the obligations of the Borrower under or duties pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any Loan Party thereunder payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party The Agent may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon the occurrence and during the continuance continuation of any Default or Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, parties to the Contracts of the Borrower, obligors of Instruments of the Borrower and obligors in respect of Chattel Paper of the Borrower that the right, title and interest of the Borrower in and under such Accounts, such Contracts, such Instruments and such Chattel Paper have been assigned to the Agent for the benefit of the Lenders and that payments shall be made directly to the Agent. Upon the request of the Agent, the Borrower will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and obligors in respect of such Chattel Paper. During the continuation of a Default or an Event of Default, to notify the obligors, under any Receivables and Related Contracts Agent may in its own name or in the name of the assignment of others communicate with such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due parties to such Loan Party thereunder directly Accounts, such Contracts, such Instruments and such Chattel Paper to verify with such Persons to Agent's satisfaction the Lender andexistence, upon such notification amount and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjust, settle Instruments or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(c) The Lender Borrower will, upon the creation of Accounts, execute and deliver to the Agent in such form and manner as the Agent may reasonably require, solely for the Agent's convenience in maintaining records of collateral, such confirmatory schedules of Accounts as the Agent may reasonably request, and such other appropriate reports designating, identifying and describing the Accounts as the Agent may reasonably require. In addition, upon the Agent's request the Borrower shall provide the Agent with copies of agreements with, or purchase orders from, the Borrower's customers, and copies of invoices to customers, proof of shipment or delivery and such other documentation and information relating to said Accounts and other Collateral as the Agent may reasonably require. Failure to provide the Agent with any of the foregoing shall in no way affect, diminish, modify or otherwise limit the Liens granted herein. The Borrower hereby authorizes the Agent to regard the Borrower's printed name or rubber stamp signature on assignment schedules or invoices as the equivalent of a manual signature by the Borrower's authorized officers or agents.
(d) The Borrower hereby represents and warrants that: each of its Trade Accounts Receivable included in Eligible Accounts Receivable is based on an actual and bona fide sale and delivery of goods or rendition of services to customers, made by it in the ordinary course of its business; the goods and Inventory being sold and the Trade Accounts Receivable thereby created are its exclusive property and are not and shall not be subject to any Lien, consignment arrangement, encumbrance, security interest or financing statement whatsoever, other than the Permitted Encumbrances; the invoices evidencing such Trade Accounts Receivable are in its name; and its customers have accepted the goods or services, owe and are obligated to pay the full amounts stated in the invoices according to their terms, without dispute, offset, defense, counterclaim or contra, except for disputes and other matters arising in the ordinary course of business with respect to which it has complied with the notification requirements of Section 5.2(f) or to the extent not included in Eligible Accounts Receivable. The Borrower confirms to the Agent that any and all taxes or fees relating to its business, its sales, the Accounts or goods relating thereto, are its sole responsibility and that same will be paid by it when due and that none of said taxes or fees represent a Lien on or claim against the Accounts. The Borrower agrees to maintain such books and records regarding Accounts as the Agent may reasonably require, shall provide the Agent with reports thereon as required by Section 7.1 and agrees that such books and records will reflect the Agent's interest in the Accounts. All of the books and records of the Borrower will be available to the Agent at normal business hours, including any records handled or maintained for the Borrower by any other company or entity.
(e) Until the Agent has advised the Borrower to the contrary after the occurrence of an Event of Default (unless and until such Event of Default is waived in writing by the Agent acting on the instructions of the Required Lenders), the Borrower may and will enforce, collect and receive all amounts owing on the Accounts for the Agent's and Lenders' benefit and on their behalf, but at the Borrower's expense; such privilege shall terminate automatically upon the institution by or against the Borrower of any proceeding under any bankruptcy or insolvency law or, at the election of the Agent, upon the occurrence of any other Event of Default and until such Event of Default is waived in writing by the Agent (acting on the instructions of the Required Lenders).
(f) The Borrower agrees to notify the Agent promptly of any matters materially affecting the value, enforceability or collectability of any Account and of all material customer disputes, offsets, defenses, counterclaims, returns, rejections and all reclaimed or repossessed merchandise or goods. The Borrower agrees to issue credit memoranda promptly (with duplicates to the Agent upon request after the occurrence of an Event of Default) upon accepting returns or granting allowances, and may continue to do so until the Agent has notified the Borrower that an Event of Default has occurred (unless and until such Event of Default is waived writing by the Agent acting on the instructions of the Required Lenders) and that all future credits or allowances are to be made only after the Agent's prior written approval.
(g) The Agent shall have the right to make test verification verifications of the Receivables Accounts and physical verifications of the Inventory in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party the Borrower agrees to furnish all such assistance and information as the Lender Agent may reasonably require in connection therewith.
(h) The Borrower will keep and maintain the Equipment in good operating condition sufficient for the continuation of the business conducted by the Borrower on a basis consistent with past practices, and the Borrower will provide all maintenance and service and all repairs necessary for such purpose.
Appears in 1 contract
Samples: Loan and Security Agreement (Reunion Industries Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s Grantor's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 11.5 hereof, the Administrative Agent authorizes each Grantor to collect its Accounts, provided that such collection is performed in accordance with such Grantor's customary procedures, and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection the Order, limit or terminate said authority at any time.
(b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Order, the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Grantor, notify obligors of Instruments and Investment Property of the Borrower or any other Grantor and notify obligors in respect of Chattel Paper of the Borrower or any other Grantor that the right, title and interest of the Borrower or such Grantor in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Order, upon the request of the Administrative Agent, the Borrower or such other Grantor will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Order, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Administrative Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party Grantor agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith. Each Grantor, at its expense, will cause certified independent public accountants satisfactory to the Requisite Lenders to prepare and deliver to the Administrative Agent at any time and from time to time, promptly upon the Administrative Agent's request, the following reports: (i) a reconciliation of all Accounts of such Grantor, (ii) an aging of all Accounts of such Grantor, (iii) trial balances, and (iv) a test verification of such Accounts as the Administrative Agent may request. The Administrative Agent shall have the right at any time to conduct periodic audits of the Accounts of any Grantor at the expense of the Borrower.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Revolving Credit Agreement (Kasper a S L LTD)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to It is expressly agreed by each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code)Grantor that, and anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under each of its Contracts and each of its Licenses to observe and perform all the contracts conditions and agreements included in such Loan Party’s Collateral obligations to the extent set forth therein to be observed and performed by it thereunder and each Grantor shall perform all of its duties and obligations thereunder thereunder, all in accordance with and pursuant to the same extent as if this Credit Agreement had not been executed (including paying cure costs if terms and provisions of each such contracts Contract or agreements are assumed), (ii) the exercise by the License. Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Security Agreement or the granting to Lender of a security interest therein or the receipt by Lender of any other Loan Documentpayment relating to any Contract or License pursuant hereto, nor shall Lender be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Lender authorizes each Grantor to collect its Accounts provided that such collection is performed in this subsection (b)a prudent and businesslike manner, each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any timemay, upon the occurrence and during the continuance continuation of an any Default or Event of Default and without notice, limit or terminate said authority at any time. If required by the Lender at any time during the continuation of any Default or Event of Default, any Proceeds, when first collected by any Grantor, received in payment of any such Account or in payment for any of its Inventory or on account of any of its Contracts, shall be promptly deposited by such Grantor in precisely the form received (with all necessary endorsements) in a special bank account maintained by Lender subject to notify the obligorswithdrawal by Lender only, under any Receivables as hereinafter provided, and Related Contracts until so turned over shall be deemed to be held in trust by such Grantor for and as Lender's property and shall not be commingled with such Grantor's other funds or properties. Such Proceeds, when deposited, shall continue to be collateral security for all of the assignment Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided. Lender shall apply all or a part of the funds on deposit in said special account to the principal of or interest on or both in respect of any of the Secured Obligations in accordance with the provisions of Section 8(d) hereof and any part of such Receivables funds which Lender elects not so to apply and Related Contracts deems not required as collateral security for the Secured Obligations shall be paid over from time to time by Lender to such Grantor. If a Default or an Event of Default has occurred and is continuing, at the request of Lender such Grantor shall deliver to the Lender all original and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to other documents evidencing, and relating to, the Lender and, upon such notification sale and at the expense delivery of such Loan Party, to enforce collection Inventory or the performance of any labor or service which created such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related ContractsAccounts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon all original orders, invoices and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentenceshipping receipts; and, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over prior to the occurrence of a Default or an Event of Default such Grantor shall deliver photocopies thereof to Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of at its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofrequest.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Security Agreement (Cynet Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under Neither the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Agents nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Agreement, the Credit Agreement Documents, or the granting to the Collateral Agent of a security interest therein or the receipt by either Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall either Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Credit Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 10.5, each Agent authorizes each Credit Party to collect its Accounts, provided that such collection is performed in accordance with such Credit Party’s customary procedures, and any Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party Commitment Order or the Lender may reasonably deem necessary Final DIP Order, as applicable, limit or advisable terminate said authority at any time with respect to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Accounts constituting Collateral.
(c) Subject to any requirement of notice provided in the Orders Commitment Order or in Section 8.02the Final DIP Order, the Lender shall have Administrative Agent and the right Collateral Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Credit Party, notify obligors of Instruments and Investment Property of the Borrower or any other Credit Party and notify obligors in respect of Chattel Paper of the Borrower or any other Credit Party, to the extent such Accounts, Contracts, Instruments, Investment Property and Chattel Paper constitute Collateral, that the right, title and interest of the Borrower or such Credit Party in, to and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Collateral Agent for the benefit of the Lenders and that payments in respect thereof shall be made directly to the Collateral Agent. Subject to any requirement of notice provided in the Commitment Order or the Final DIP Order, upon the request of either Agent or the Majority Lenders, the Borrower or such other Credit Party will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Commitment Order or the Final DIP Order, upon the occurrence and during the continuation of an Event of Default, any Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Majority Lenders’ reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Either Agent shall have the right to make test verification of the Receivables Accounts constituting Collateral in any manner and through any medium that it considers advisable in its reasonable discretionthe Majority Lenders consider advisable, and each Loan Credit Party agrees to furnish all such assistance and information as the Lender such Agent may reasonably require in connection therewith.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Sea Containers LTD /Ny/)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject in the case of the Debtors to each Loan PartyDebtor’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and to the extent applicable, it is expressly agreed by each Credit Party that, anything herein to the contrary notwithstanding, (i) each Loan such Credit Party shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise be observed and performed by the Lender of it thereunder. Neither any of the rights hereunder shall not release Agent nor any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Agreement, the Credit Agreement Documents, or the granting to the Collateral Agents of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall any Secured Party Agent be required or obligated in any manner to perform or fulfill any of the obligations or duties of any Loan Credit Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 10.5, each Agent authorizes each Credit Party to collect its Accounts, provided that such collection is performed in accordance with such Credit Party’s customary procedures, and any Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party Interim Order or the Lender may reasonably deem necessary Final DIP Order, as applicable, limit or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject terminate said authority at any time.
(c) Subject to any requirement of notice provided in the Orders Interim Order or in Section 8.02the Final DIP Order, as applicable, the Lender shall have the right Administrative Agent and any Collateral Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrowers of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrowers or any other Credit Party, notify obligors of Instruments and Investment Property of the Borrowers or any other Credit Party and notify obligors in respect of Chattel Paper of the Borrowers or any other Credit Party that the right, title and interest of the Borrowers or such Credit Party in, to and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Collateral Agents for the benefit of the Lenders and that payments in respect thereof shall be made directly to the Senior Collateral Agent. Subject to any requirement of notice provided in the Interim Order or the Final DIP Order, as applicable, upon the request of any Agent, the Borrowers or such Trico Marine DIP Credit Agreement other Credit Party will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Interim Order or the Final DIP Order, as applicable, upon the occurrence and during the continuation of an Event of Default, to notify any Agent may in its own name, or in the obligorsname of others, under any Receivables and Related Contracts of the assignment of communicate with such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due parties to such Loan Party thereunder directly Accounts, Contracts, Instruments, Investment Property and Chattel Paper to verify with such Persons to such Agent’s reasonable satisfaction the Lender andexistence, upon such notification amount and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Any Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Credit Party agrees to furnish all such assistance and information as the Lender any such Agent may reasonably require in connection therewith. Each Credit Party, at its expense, will cause the Credit Parties’ certified independent public accountants satisfactory to the Majority Lenders to prepare and deliver to each Agent at any time and from time to time, promptly upon any Agent’s request, the following reports: (i) a reconciliation of all Accounts of such Credit Party, (ii) an aging of all Accounts of such Credit Party, (iii) trial balances, and (iv) a test verification of such Accounts as any Agent may reasonably request. Any Agent shall have the right at any time to conduct periodic audits of the Accounts of any Credit Party at the expense of the Borrowers.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Trico Marine Services Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything Anything herein to the contrary notwithstanding, (i) each Loan Party the Borrower shall remain liable under each of the contracts Mortgage Loan Documents to which it is a party to observe and agreements included perform all the conditions and obligations to be observed and performed by it thereunder, all in such Loan Party’s Collateral accordance with and pursuant to the extent set forth therein to perform all terms and provisions of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if each such contracts or agreements are assumed), (ii) the exercise by the Mortgage Loan Document. The Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Mortgage Loan Document by reason of or arising out of this Credit Agreement or the receipt by the Lender of any other payment relating to such Mortgage Loan DocumentDocument pursuant hereto, nor shall any Secured Party the Lender be obligated in any manner to perform any of the obligations of the Borrower under or duties pursuant to any Mortgage Loan Document, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Mortgage Loan Party thereunder Document, to present or file any claim, to take any action to collect or enforce any claim for performance or to collect the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under Upon the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or request of the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon time after the occurrence and during the continuance of an Event of Default, the Borrower shall notify parties to notify the obligors, under any Receivables and Related Contracts of Mortgage Loan Document to which it is a party that the assignment of such Receivables and Related Contracts Mortgage Loan Documents have been assigned to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder that payments in respect thereof shall be made directly to the Lender. The Lender andmay in its own name or in the name of others communicate with parties to the Mortgage Loan Documents to verify with them to its satisfaction the existence, upon such notification amount and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Mortgage Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofDocuments.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Interim Loan and Security Agreement (Aames Financial Corp/De)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to It is expressly agreed by each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code)Grantor that, and anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under each of its Contracts and each of its Licenses to observe and perform all the contracts conditions and agreements included in such Loan Party’s Collateral obligations to the extent set forth therein to be observed and performed by it thereunder and each Grantor shall perform all of its duties and obligations thereunder thereunder, all in accordance with and pursuant to the same extent as if this Credit Agreement had not been executed (including paying cure costs if terms and provisions of each such contracts Contract or agreements are assumed), (ii) the exercise by the License. Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Security Agreement or the granting to Lender of a security interest therein or the receipt by Lender of any other Loan Documentpayment relating to any Contract or License pursuant hereto, nor shall Lender be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except Lender authorizes each Grantor to collect its Accounts provided that such collection is performed in a prudent and businesslike manner, and Lender may, upon the occurrence and during the continuation of any Default or Event of Default and without notice, limit or terminate said authority at any time. If required by the Lender at any time during the continuation of any Default or Event of Default, any Proceeds, when first collected by any Grantor, received in payment of any such Account or in payment for any of its Inventory or on account of any of its Contracts, shall be promptly deposited by such Grantor in precisely the form received (with all necessary endorsements) in a special bank account maintained by Lender subject to withdrawal by Lender only, as otherwise provided hereinafter provided, and until so turned over shall be deemed to be held in this subsection (b)trust by such Grantor for and as Lender's property and shall not be commingled with such Grantor's other funds or properties. Such Proceeds, each Loan Party will when deposited, shall continue to collectbe collateral security for all of the Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided. Lender shall apply all or a part of the funds on deposit in said special account to the principal of or interest on or both in respect of any of the Secured Obligations in accordance with the provisions of Section 8(d) hereof and any part of such funds which Lender elects not so to apply and deems not required as collateral security for the Secured Obligations shall be paid over from time to time by Lender to such Grantor. If a Default or an Event of Default has occurred and is continuing, at its own expensethe request of Lender such Grantor shall deliver to the Lender all original and other documents evidencing, and relating to, the sale and delivery of such Inventory or the performance of labor or service which created such Accounts, including, without limitation, all amounts due or to become due such Loan Party under the Receivables original orders, invoices and Related Contracts. In connection with such collections, such Loan Party may take (shipping receipts; and, prior to the occurrence of a Default or an Event of Default such Grantor shall deliver photocopies thereof to Lender at Lender’s direction, will takeits request.
(c) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon the occurrence and during the continuance continuation of any Default or Event of Default (whether or not waived), after first notifying each Grantor of its intention to do so, notify Account Debtors of such Grantor, parties to the Contracts of such Grantor, obligors of Instruments of such Grantor and obligors in respect of Chattel Paper of such Grantor, other than, in any case, with respect to Encumbered Accounts Receivable, that the Accounts (excluding the Encumbered Accounts Receivable) and the right, title and interest of such Grantor in and under such Contracts, such Instruments and such Chattel Paper have been assigned to Lender and that payments shall be made directly to Lender. Upon the request of Lender, such Grantor will so notify such Account Debtors, parties to such Contracts, obligors of such Instruments and obligors in respect of such Chattel Paper, other than, in any case, with respect to Encumbered Accounts Receivable. Upon the occurrence and during the continuation of a Default or an Event of DefaultDefault (whether or not waived) Lender may in its own name or in the name of others communicate with such Account Debtors, parties to notify the obligorssuch Contracts, under any Receivables and Related Contracts of the assignment obligors of such Receivables Instruments and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense in respect of such Loan PartyChattel Paper to verify with such Persons to Lender's satisfaction the existence, to enforce collection amount and terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments or Chattel Paper, settle or compromise the amount or payment thereofother than, in the same manner and to the same extent as such Loan Party might have doneany case, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofEncumbered Accounts Receivable.
(cd) The Upon reasonable prior notice to each Grantor (unless a Default or an Event of Default has occurred and is continuing, in which case no notice is necessary), Lender shall have the right to make test verification verifications of the Receivables Accounts (other than Encumbered Accounts Receivable) and physical verifications of the Inventory in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party such Grantor agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith. Each Grantor at its expense will cause certified independent public accountants satisfactory to Lender to prepare and deliver to Lender at any time and from time to time promptly upon Lender's request, the following reports: (i) a reconciliation of all its Accounts (other than Encumbered Accounts Receivable), (ii) an aging of all its Accounts (other than Encumbered Accounts Receivable), (iii) trial balances, and (iv) a test verification of such Accounts (other than Encumbered Accounts Receivable) as Lender may request. Such Grantor at its expense will cause certified independent public accountants satisfactory to Lender to prepare and deliver to Lender the results of the annual physical verification of its Inventory made or observed by such accountants.
Appears in 1 contract
Samples: Security Agreement (Cynet Inc)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed)executed, (ii) the exercise by the Lender Administrative Agent of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, Collateral and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables Accounts and Related Contracts. In connection with such collections, such Loan Party may take (and, and at Lenderthe Administrative Agent’s reasonable direction, will take) such action as such Loan Party or the Lender Administrative Agent may reasonably deem necessary or advisable to enforce collection of the Receivables Accounts and Related Contracts; provided, however, that, subject to any requirement of notice provided in the DIP Refinancing Orders or in Section 8.026.01, the Lender Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, obligors under any Receivables Accounts and Related Contracts of the assignment of such Receivables Accounts and Related Contracts to the Lender Administrative Agent and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender Administrative Agent and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables Accounts and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables Accounts and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial CodeUCC. Upon and during the exercise by the Lender Administrative Agent on behalf of the Lenders of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables Accounts and Related Contracts of such Loan Party shall be received in trust for the benefit of the Administrative Agent hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender Administrative Agent in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with the Administrative Agent and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable Account or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables Accounts and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Lender Administrative Agent shall have the right to make test verification of the Receivables Accounts (other than Accounts that any Loan Party is required to maintain as “classified”) in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender Administrative Agent may reasonably require in connection therewith.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s 's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Loan Party that, anything herein to the contrary notwithstanding, (i) each such Loan Party shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Agent of a security interest therein or the receipt by the Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b)Subject to Section 9.05 hereof, the Agent authorizes each Loan Party will continue to collectcollect its Accounts, at its own expense, all amounts due or to become due provided that such collection is performed in accordance with such Loan Party under Party's customary procedures, and the Receivables Agent may, upon the occurrence and Related Contracts. In connection with such collectionsduring the continuation of any Event of Default and without notice, such Loan Party may take other than any requirement of notice provided in the Orders, limit or terminate said authority at any time.
(and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have the right Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any Loan Party, notify obligors of Instruments and Investment Property of the Borrower or any Loan Party and notify obligors in respect of Chattel Paper of the Borrower that the right, title and interest of the Borrower or such Loan Party in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Agent and that payments shall be made directly to the Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Agent, the Borrower or any Loan Party will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables such Contracts, such Instruments, such Investment Property and Related Contracts of the assignment of such Receivables and Related Contracts Chattel Paper to verify with such Persons to the Lender Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, such Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party agrees to furnish all such assistance and information as the Lender Agent may reasonably require in connection therewith. Each Loan Party, at its expense, will cause certified independent public accountants satisfactory to the Requisite Lenders to prepare and deliver to the Agent at any time and from time to time, promptly upon the Agent's request, the following reports: (i) a reconciliation of all Accounts of such Loan Party, (ii) an aging of all Accounts of such Loan Party, (iii) trial balances, and (iv) a test verification of such Accounts as the Agent may request. The Agent shall have the right at any time to conduct periodic audits of the Accounts of any Loan Party at the expense of the Borrower.
Appears in 1 contract
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code)It is expressly agreed by Grantor that, and anything herein to the contrary notwithstanding, (i) each Loan Party Grantor shall remain liable under each of its Contracts to observe and perform all the contracts conditions and agreements included in such Loan Party’s Collateral obligations to the extent set forth therein to be observed and performed by it thereunder and Grantor shall perform all of its duties and obligations thereunder thereunder, all in accordance with and pursuant to the same extent as if this Credit Agreement had not been executed (including paying cure costs if terms and provisions of each such contracts or agreements are assumed), (ii) the exercise by the Contract. Lender of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Security Agreement or the granting to Lender of a security interest therein or the receipt by Lender of any other Loan Documentpayment relating to any Contract pursuant hereto, nor shall Lender be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations of Grantor under or duties pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any Loan Party thereunder payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collectGrantor hereby authorizes Lender, at its own expense, all amounts due any time or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will take) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject to any requirement of notice provided in the Orders or in Section 8.02, the Lender shall have the right at any time, upon times after the occurrence and during the continuance of an Event of Default, to notify the obligors, under any Receivables and Related Contracts of the assignment of such Receivables and Related Contracts to the Lender and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) notify any or all Account Debtors that the Accounts Receivable have been assigned to Lender and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the that Lender in the same form as so received (with any necessary endorsement) to be deposited in has a collateral account maintained with and applied as provided in Section 9.07(b) security interest therein and (ii) direct such Loan Party will not adjust, settle Account Debtors to make all payments due from them to Grantor upon the Accounts Receivable directly to Lender or compromise the amount or payment to a lock box designated by Lender. Lender shall promptly furnish Grantor with a copy of any Receivable or amount due such notice sent. Any such notice, in Lender's sole discretion, may be sent on any Related ContractGrantor's stationery, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofin which event Grantor shall co-sign such notice with Lender.
(c) The Lender shall have the right to make test verification verifications of the Receivables Accounts Receivable in any manner and through any commercially reasonable medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party Grantor agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith. Grantor at its expense will cause certified independent public accountants satisfactory to Lender to prepare and deliver to Lender at any time and from time to time promptly upon Lender's request, the following reports: (i) a reconciliation of all its Accounts Receivable, (ii) an aging of all its Accounts Receivable, (iii) trial balances, and (iv) a test verification of such Accounts Receivable as Lender may request.
Appears in 1 contract
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Credit Party’s 's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Credit Party that, anything herein to the contrary notwithstanding, (i) each Loan such Credit Party shall remain liable under the contracts each of its Contracts and agreements included in such Loan Party’s Collateral each of its Licenses to the extent set forth therein to observe and perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder, unless such Credit Party determines in its reasonable good faith judgment that such Contract or License is no longer valuable to such Credit Party's business, economically or otherwise. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract or License by reason of or arising out of this Credit Agreement or any other Loan Document, nor shall the granting herein of a Lien thereon or the receipt by Administrative Agent or any Secured Party of any payment relating to any Contract or License pursuant hereto. Neither Administrative Agent nor any Secured Party shall be required or obligated in any manner to perform or fulfill any of the obligations or duties of any Loan Credit Party thereunder under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claims, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 10.5 hereof, the Administrative Agent authorizes each Credit Party to collect its Accounts, provided that such collection is performed in accordance with such Credit Party's customary procedures, and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection the Orders, limit or terminate said authority at any time.
(b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have the right Administrative Agent may at any timetime after an Event of Default has occurred and is continuing without prior notice to any Credit Party, notify Account Debtors and other Persons obligated on the Collateral that Administrative Agent has a security interest therein, and that payments shall be made directly to Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the reasonable request of Administrative Agent, each Credit Party shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on the Collateral, the affected Credit Party shall not give any contrary instructions to such Account Debtor or other Person without Administrative Agent's prior written consent. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuance continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, Instruments, Investment Property or Chattel Paper.
(d) Subject to adjustany requirement of notice provided in the Orders, settle or compromise the amount or payment thereofAdministrative Agent may at any time in Administrative Agent's own name, in the same manner and name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with Account Debtors to verify with such Persons, to Administrative Agent's satisfaction, the same extent as such Loan Party might have doneexistence, amount, terms of, and any other matter relating to, Accounts and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Administrative Agent shall not do any of the foregoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to otherwise exercise all rights be present. If an Event of Default shall have occurred and be continuing, each Credit Party, at its own expense, shall cause the independent certified public accountants then engaged by such Credit Party to prepare and deliver to Administrative Agent and each Secured Party at any time and from time to time promptly upon Administrative Agent's written request the following reports with respect to each Credit Party: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Receivables Accounts as Administrative Agent may request. Administrative Agent may at any time in Administrative Agent's own name, in the name of a nominee of Administrative Agent or in the name of any Credit Party communicate (by mail, telephone, facsimile or otherwise) with parties to Contracts and Related Contractsobligors in respect of Instruments to verify with such Persons, includingto Administrative Agent's satisfaction, without limitationthe existence, those set forth in Section 9-607 amount, terms of, and any other matter relating to, Instruments, Chattel Paper and/or payment intangibles comprising Collateral; provided that unless an Event of Default shall have occurred and be continuing, the Uniform Commercial Code. Upon and during the exercise by the Lender of Administrative Agent shall not do any of the remedies described in the proviso of the immediately preceding sentenceforegoing except during normal business hours and after giving such Credit Party reasonable prior notice and opportunity to be present. Each Credit Party, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunderat its own expense, shall be segregated from other funds deliver to Administrative Agent the results of each physical verification, if any, which such Loan Credit Party and shall be forthwith paid over to the Lender may in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereofits discretion have made, or allow caused any credit other Person to have made on its behalf, of all or discount thereon. No Loan Party will permit or consent to the subordination any portion of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofInventory.
(c) The Lender shall have the right to make test verification of the Receivables in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.
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Samples: Secured Super Priority Debtor in Possession Credit Agreement (Delta Air Lines Inc /De/)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s 's rights and duties under the Bankruptcy Code (including Section 365 of the Bankruptcy Code), and anything herein to the contrary notwithstanding, (i) each Loan Party shall remain liable under the contracts and agreements included in such Loan Party’s 's Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed)executed, (ii) the exercise by the Lender Administrative Agent of any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, Collateral and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Credit Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of the obligations or duties of any Loan Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(b) Except as otherwise provided in this subsection (b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables Accounts and Related Contracts. In connection with such collections, such Loan Party may take (and, upon the occurrence and during the continuance of an Event of Default, at Lender’s the Administrative Agent's direction, will take) such action as such Loan Party or the Lender Administrative Agent may reasonably deem necessary or advisable to enforce collection of the Receivables Accounts and Related Contracts; provided, however, that, subject to any requirement of notice provided in the DIP Financing Orders or in Section 8.026.01, the Lender Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the obligors, obligors under any Receivables Accounts and Related Contracts of the assignment of such Receivables Accounts and Related Contracts to the Lender Administrative Agent and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender Administrative Agent and, upon such notification and at the expense of such Loan Party, to enforce collection of any such Receivables Accounts and Related Contracts, to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables Accounts and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial CodeUCC. Upon and during the exercise by the Lender Administrative Agent on behalf of the Lenders of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables Accounts and Related Contracts of such Loan Party shall be received in trust for the benefit of the Administrative Agent hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender Administrative Agent in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with the Administrative Agent and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable Account or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables Accounts and Related Contracts to any other indebtedness or obligations of the obligor thereof.
(c) The Each Initial Lender shall have the right to make test verification of the Receivables Accounts (other than Accounts that any Loan Party is required to maintain as "classified") in any manner and through any medium that it considers advisable in its reasonable discretion, and each Loan Party agrees to furnish all such assistance and information as the any Initial Lender may reasonably require in connection therewith.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Rights of Lender; Limitations on Lender’s Obligations. (a) Subject to each Loan Party’s Grantor's rights and duties under the Bankruptcy Code (including Section section 365 of the Bankruptcy Code), and it is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, (i) each Loan Party such Grantor shall remain liable under the contracts its Contracts to observe and agreements included in such Loan Party’s Collateral to the extent set forth therein to perform all of its duties the conditions and obligations thereunder to be observed and performed by it thereunder. Neither the same extent as if this Credit Agreement had not been executed (including paying cure costs if such contracts or agreements are assumed), (ii) the exercise by the Lender of Administrative Agent nor any of the rights hereunder shall not release any Loan Party from any of its duties or obligations under the contracts and agreements included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under the contracts and agreements included in the Collateral any Contract by reason of or arising out of this Credit Agreement Agreement, the Loan Documents, or the granting to the Administrative Agent of a security interest therein or the receipt by the Administrative Agent or any other Loan DocumentLender of any payment relating to any Contract pursuant hereto, nor shall the Administrative Agent be required or obligated in any Secured Party be obligated manner to perform or fulfill any of the obligations or duties of any Loan Party thereunder Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any claim for performance or the payment of any amounts which may have been assigned hereunderto it or to which it may be entitled at any time or times.
(b) Except as otherwise Subject to Section 11.5 hereof, the Administrative Agent authorizes each Grantor to collect its Accounts, provided that such collection is performed in accordance with such Grantor's customary procedures, and the Administrative Agent may, upon the occurrence and during the continuation of any Event of Default and without notice, other than any requirement of notice provided in this subsection the Orders, limit or terminate said authority at any time.
(b), each Loan Party will continue to collect, at its own expense, all amounts due or to become due such Loan Party under the Receivables and Related Contracts. In connection with such collections, such Loan Party may take (and, at Lender’s direction, will takec) such action as such Loan Party or the Lender may reasonably deem necessary or advisable to enforce collection of the Receivables and Related Contracts; provided, however, that, subject Subject to any requirement of notice provided in the Orders or in Section 8.02Orders, the Lender shall have the right Administrative Agent may at any time, upon the occurrence and during the continuance continuation of any Event of Default, after first notifying the Borrower of its intention to do so, notify Account Debtors, notify the other parties to the Contracts of the Borrower or any other Grantor, notify obligors of Instruments and Investment Property of the Borrower or any other Grantor and notify obligors in respect of Chattel Paper of the Borrower or any other Grantor that the right, title and interest of the Borrower or such Grantor in and under such Accounts, such Contracts, such Instruments, such Investment Property and such Chattel Paper have been assigned to the Administrative Agent and that payments shall be made directly to the Administrative Agent. Subject to any requirement of notice provided in the Orders, upon the request of the Administrative Agent, the Borrower or such other Grantor will so notify such Account Debtors, such parties to Contracts, obligors of such Instruments and Investment Property and obligors in respect of such Chattel Paper. Subject to any requirement of notice provided in the Orders, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may in its own name, or in the name of others, communicate with such parties to notify the obligorssuch Accounts, under any Receivables Contracts, Instruments, Investment Property and Related Contracts of the assignment of Chattel Paper to verify with such Receivables and Related Contracts Persons to the Lender Administrative Agent's reasonable satisfaction the existence, amount and to direct such obligors to make payment of all amounts due or to become due to such Loan Party thereunder directly to the Lender and, upon such notification and at the expense of such Loan Party, to enforce collection terms of any such Receivables and Related Accounts, Contracts, to adjustInstruments, settle Investment Property or compromise the amount or payment thereof, in the same manner and to the same extent as such Loan Party might have done, and to otherwise exercise all rights with respect to such Receivables and Related Contracts, including, without limitation, those set forth in Section 9-607 of the Uniform Commercial Code. Upon and during the exercise by the Lender of any of the remedies described in the proviso of the immediately preceding sentence, (i) any and all amounts and proceeds (including, without limitation, instruments) received by such Loan Party in respect of the Receivables and Related Contracts of such Loan Party shall be received in trust for the benefit of the hereunder, shall be segregated from other funds of such Loan Party and shall be forthwith paid over to the Lender in the same form as so received (with any necessary endorsement) to be deposited in a collateral account maintained with and applied as provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or compromise the amount or payment of any Receivable or amount due on any Related Contract, release wholly or partly any obligor thereof, or allow any credit or discount thereon. No Loan Party will permit or consent to the subordination of its right to payment under any of the Receivables and Related Contracts to any other indebtedness or obligations of the obligor thereofChattel Paper.
(cd) The Lender Administrative Agent shall have the right to make test verification of the Receivables Accounts in any manner and through any medium that it considers advisable in its reasonable discretionadvisable, and each Loan Party Grantor agrees to furnish all such assistance and information as the Lender may reasonably require in connection therewith.Administrative Agent may
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