Retention of Title Supplied Goods shall remain Seller’s property until fulfillment by Customer of its payment obligations as described above. As such:
(a) If Goods are processed combined, and/or mixed by Customer with other goods belonging to him, then Xxxxxx has the entire ownership on the new goods. If Goods are processed, combined, and/or mixed by Customer with other goods belonging to other suppliers, then Seller has a joint ownership right in the whole value of the new goods with such suppliers. In such case, Seller’s ownership shall be calculated on the basis of the ratio of the invoiced value of the Goods to the invoiced value of all goods, which were used for manufacturing the new goods.
(b) As long as Customer is not in default and provided that it reserves its property rights, Customer is exclusively entitled to resell Goods in the ordinary course of business. Use of Goods for executing service contracts and contracts for work, labour and material is herein regarded as a resale.
(c) Customer’s receivables arising out of the resale of Goods are already assigned, for security purposes, exclusively to Seller. Customer is entitled to collect the receivables from reselling, unless Xxxxxx withdraws the direct debit authorization in case of any doubt about Customer’s solvency and/or financial credibility or if Customer is in arrears on any of its payments. In the event Xxxxxx withdraws the direct debit authorization, Customer is obliged (i) to inform its clients immediately about the assignment to Seller and that Seller is the owner of Goods, (ii) and to give Seller all information and documents necessary in order to establish and confirm Seller’s rights with respect to third parties. Customer shall be obligated to inform Seller without delay about any garnishment and/or any other actions adversely affecting the Goods undertaken by third parties. If the value of the existing security interests obtained by Customer for the benefit of Seller exceeds in total more than 20 % the total invoiced amount of the contractual debt of Customer, Seller is obliged, upon Customer’s request, to release Goods selected by Seller.
(d) Customer shall have the sole liability for, and shall bear all risks and costs associated with the unloading, correct handling and suitable storage of Goods and/or the new goods as described in Article 6 a) above. Moreover, Customer undertakes (i) to take a general liability all risks insurance policy, at its own cost, including coverage as to the deterioration and/or theft of all or a part of Goods and/or of the new goods and
(ii) provide to Seller, at its first request, a certificate confirming both such insurance coverage and the payment of the insurance premium related thereto.
Condition of Title (a) At the Settlement Date, title to the Property shall be good and marketable and free and clear of all liens and encumbrances, easements, restrictions, rights and similar conditions, excepting Permitted Exceptions (as defined below) and matters appearing of public record on the Effective Date, subject to subparagraph 4(b) below.
(b) During the Feasibility Period, Purchaser shall have the right to order a title search to be performed with regard to the Property, and to order a commitment for an owner policy title insurance (the “Commitment”) to be issued by the Title Company with regard to the Property, all at Purchaser’s sole cost and expense. Concurrently with its delivery of the Commitment to Purchaser, the Title Company shall deliver copies thereof to Seller. Purchaser shall further have the right to order a survey of the Property (the “Survey”), at its sole cost and expense. Purchaser shall promptly deliver to Seller and the Title Company a copy of the Survey as soon as it is available. Regardless of Purchaser’s election to order or not order any Commitment or Survey, Purchaser shall, no later than the date that is thirty (30) days after the Effective Date (the “Title Objection Date”), deliver written notice to Seller of any title or survey defect, lien, encumbrance or other matter with respect to the Property that is unacceptable to Purchaser, other than Permitted Exceptions (such matters being referred to herein as “Defects” and each being a “Defect”), together with complete copies of each of any Survey and Commitment, and all documents and instruments referred to therein. Purchaser’s election to not order any Commitment or Survey shall not relieve Purchaser of its obligations under this Section 4(b), or any other term or condition set forth herein. If, on or before the Title Objection Date, Purchaser properly gives notice to Seller of one or more Defects as required herein, Seller shall, within ten (10) business days after receiving such notice, notify Purchaser whether Seller will or will not attempt to cure such Defects to Purchaser’s reasonable satisfaction. Failure by Seller to deliver such notice shall be deemed Seller’s election not to cure any such Defects. If Seller elects (or is deemed to have elected) not to attempt to cure such Defects, Purchaser shall be entitled, by giving notice (the “Purchaser Notice”) to Seller within five (5) days after receiving such notice from Seller (but in any event prior to the expiration of the Feasibility Period), to terminate this Agreement, whereupon the Deposit shall be returned to Purchaser and neither party shall have any further liability hereunder (except with respect to Purchaser’s repair and indemnification obligations as set forth in Section 14 below). If Purchaser does not timely deliver the Purchaser Notice, such failure shall be deemed a waiver of Purchaser’s right to object to any Defects and Purchaser shall proceed to Settlement and accept title to the Property subject to the uncured Defects (which shall be deemed Permitted Exceptions), the Permitted Exceptions, all matters of public record on the Effective Date, and all matters that are or would be reflected in any Survey, without an abatement of the Purchase Price. If Seller elects in writing as aforesaid to attempt to cure any Defects, Seller shall use commercially reasonable efforts to cure such Defects prior to Settlement. If Seller elects to attempt to cure any Defects, but at the time of Settlement such Defects have not been cured, Purchaser’s sole option and remedy shall be either to (i) terminate this Agreement, whereupon the Deposit shall be returned to Purchaser and neither party shall have any further liability hereunder (except with respect to Purchaser’s repair and indemnification obligations as set forth in Section 14 below), or
(ii) proceed to Settlement and accept title to the Property subject to such uncured Defects and all other Permitted Exceptions, without an abatement of the Purchase Price.
(c) For the purposes of this Agreement, “Permitted Exceptions” shall mean (i) liens for real estate taxes and assessments not yet due and payable, (ii) applicable zoning, building and other laws, regulations and ordinances and any violations or any encroachments thereof,
Reservation of Title The transfer of ownership of the delivered products is suspended until full payment of the price of these by the professional purchaser, in principal and accessories, even in case of granting of payment deadlines. Any clause to the contrary, in particular inserted in the general conditions of purchase, is deemed unwritten. By express agreement, the company LABORATOIRES XXXXXXX will be able to enforce its rights under this retention of title clause in its own name and on its own behalf and/or in the name and on behalf of its suppliers, for any of its outstanding debts that remain partially or totally unpaid, on all of its products and/or the products of its suppliers still in the possession of the professional purchaser, these are conventionally presumed to be those unpaid, and the company LABORATOIRES XXXXXXX may, by right and without formality, take them back or claim them as compensation for all its unpaid invoices, at the expense, risk and peril of the professional purchaser and without prejudice to its right to terminate the sales in progress. Any deposit paid by the professional purchaser will remain acquired to the company LABORATOIRES XXXXXXX as a lump sum compensation, without prejudice to all other actions that it would be entitled to take against the professional purchaser. However, the risk of loss or deterioration shall pass to the professional purchaser upon delivery of the ordered products. During the period of retention of title, the professional purchaser must insure the unpaid goods against any damage suffered or caused by them, until full transfer of ownership, the insurance policies must mention the ownership of the company LABORATOIRES XXXXXXX or suppliers of the latter. The professional purchaser is obliged to justify it to the company LABORATOIRES XXXXXXX at the time of the delivery. Failing this, the company LABORATOIRES XXXXXXX would be entitled to delay the delivery until presentation of this proof. The professional purchaser may only resell the unpaid products in the normal course of business. It may in no case pledge, grant a security interest, pledge or transfer the ownership of its unpaid stocks as a guarantee. The professional purchaser must immediately notify the company LABORATOIRES XXXXXXX in case of seizure or any other intervention of a third party or of transfer or pledge of its business. If the professional purchaser resells the products before full payment, it will be deemed to have resold on behalf of the company LABORATOIRES XXXXXXX; the deposits already paid by it will then be automatically offset against the sums owed to the company LABORATOIRES XXXXXXX for the sale made on its behalf. The company LABORATOIRES XXXXXXX may also require, in case of total or partial non-payment of an invoice on the due date, the resolution of the sale and the reclamation of the products delivered after sending a simple formal notice, the return costs being borne by the professional purchaser and the payments made remaining acquired to the company LABORATOIRES XXXXXXX as a penalty clause. Similarly, the company LABORATOIRES XXXXXXX may unilaterally, after sending a notice of default, draw up or have drawn up an inventory of products it has invoiced still in possession of the professional purchaser, which undertakes to leave free access to its warehouses, stores or other for this purpose, ensuring that the identification of such products is always possible. In the event of the opening of insolvency proceedings, to the extent permitted by law and subject to any applicable public policy provisions, outstanding orders will be automatically cancelled and the company LABORATOIRES XXXXXXX reserves the right to reclaim the goods in stock. The above provisions do not prevent the transfer to the professional purchaser of the risks of loss or deterioration of the products subject to retention of title as well as the damage they may cause, as soon as the goods are shipped. The benefit of the present retention of title clause will be automatically transmitted to any third party subrogated in the rights, actions and privileges of the company LABORATOIRES XXXXXXX under its claim.
Protection of Title of Purchaser (a) At or prior to the Closing Date, Seller shall have filed or caused to be filed a UCC-1 financing statement, naming Seller as seller or debtor, naming Purchaser as purchaser or secured party and describing the Receivables and the Other Conveyed Property being sold by it to Purchaser as collateral, with the office of the Secretary of State of the State of Delaware and in such other locations as Purchaser shall have required. From time to time thereafter, Seller shall execute and file such financing statements and cause to be executed and filed such continuation statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of Purchaser under this Agreement, of the Issuer under the Sale and Servicing Agreement and of the Trust Collateral Agent under the Indenture in the Receivables and the Other Conveyed Property and in the proceeds thereof. Seller shall deliver (or cause to be delivered) to Purchaser and the Trust Collateral Agent file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. In the event that Seller fails to perform its obligations under this subsection, Purchaser, Issuer or the Trust Collateral Agent may do so, at the expense of the Seller. In furtherance of the foregoing, the Seller hereby authorizes the Purchaser, the Issuer or the Trust Collateral Agent to file a record or records (as defined in the applicable UCC), including, without limitation, financing statements, in all jurisdictions and with all filing offices as each may determine, in its sole discretion, are necessary or advisable to perfect the security interest granted to the Purchaser pursuant to Section 6.9 of this Agreement. Such financing statements may describe the collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as such party may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the collateral granted to the Purchaser herein.
(b) Seller shall not change its name, identity, state of incorporation or corporate structure in any manner that would, could or might make any financing statement or continuation statement filed by Seller (or by Purchaser, Issuer or the Trust Collateral Agent on behalf of Seller) in accordance with paragraph (a) above seriously misleading within the meaning of §9-506 of the applicable UCC, unless they shall have given Purchaser, Issuer and the Trust Collateral Agent at least 60 days’ prior written notice thereof, and shall promptly file appropriate amendments to all previously filed financing statements and continuation statements.
(c) Seller shall give Purchaser, the Issuer and the Trust Collateral Agent at least 60 days prior written notice of any relocation that would result in a change of the location of the debtor within the meaning of Section 9-307 of the applicable UCC. Seller shall at all times maintain (i) each office from which it services Receivables within the United States of America or Canada and (ii) its principal executive office within the United States of America.
(d) Prior to the Closing Date, Seller has maintained accounts and records as to each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know at any time as of or prior to the Closing Date, the status of such Receivable, including payments and recoveries made and payments owing (and the nature of each) and (ii) reconciliation between payments or recoveries on (or with respect to) each Receivable and the Principal Balance as of the Cutoff Date. Seller shall maintain its computer systems so that, from and after the time of sale under this Agreement of the Receivables to Purchaser, and the conveyance of the Receivables by Purchaser to the Issuer, Seller’s master computer records (including archives) that shall refer to a Receivable indicate clearly that such Receivable has been sold to Purchaser and has been conveyed by Purchaser to the Issuer. Indication of the Issuer’s ownership of a Receivable shall be deleted from or modified on Seller’s computer systems when, and only when, the Receivable shall become a Purchased Receivable or a Sold Receivable or shall have been paid in full or sold pursuant to the terms of the Sale and Servicing Agreement.
(e) If at any xxxx Xxxxxx shall propose to sell, grant a security interest in, or otherwise transfer any interest in any motor vehicle receivables to any prospective purchaser, lender or other transferee, Seller shall give to such prospective purchaser, lender, or other transferee computer tapes, records, or print-outs (including any restored from archives) that, if they shall refer in any manner whatsoever to any Receivable (other than a Purchased Receivable or a Sold Receivable), shall indicate clearly that such Receivable has been sold to Purchaser, sold by Purchaser to Issuer, and is owned by the Issuer.
Defense of Title Warrant and defend title to and ownership of the Pledged Collateral of such Pledgor at its own expense against the claims and demands of all other parties claiming an interest therein, keep the Pledged Collateral free from all Liens, except for Permitted Liens, and not sell, exchange, transfer, assign, lease or otherwise dispose of Pledged Collateral of such Pledgor or any interest therein, except as permitted under the Credit Agreement and the other Loan Documents.
DELIVERY, TITLE AND RISK OF LOSS Unless otherwise specified on the EDDYFI quotation, delivery is FCA (Manufacturing Site). In any case, delivery and risk of loss is in accordance with INCOTERMS 2010. Title to products shall pass to the Customer upon full payment of the invoice(s). In the absence of specific instructions, goods will be shipped via the carrier EDDYFI deems most practical. No claim for error in shipment will be considered unless made within ten (10) days of Customer’s receipt of goods.
Title and Risk of Loss Notwithstanding the form of shipment, title or other property interest, risk of loss shall not pass from the Contractor to the Authorized User until the Products have been received, inspected and accepted by the receiving entity. Acceptance shall occur within a reasonable time or in accordance with such other defined acceptance period as may be specified in the Bid Specifications or Purchase Order. Mere acknowledgment by Authorized User personnel of the delivery or receipt of goods (e.g., signed xxxx of lading) shall not be deemed or construed as acceptance of the Products received. Any delivery of Product that is substandard or does not comply with the Bid Specifications or Contract terms and conditions, may be rejected or accepted on an adjusted price basis, as determined by the Commissioner.
Defense of Title to Collateral Each Borrower shall at all times defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands whatsoever, except Permitted Liens.
Protection of Title (a) Santander Consumer shall authorize and file such financing statements and cause to be authorized and filed such continuation and other financing statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Purchaser under this Agreement in the Purchased Assets (to the extent that the interest of the Purchaser therein can be perfected by the filing of a financing statement). Santander Consumer shall deliver (or cause to be delivered) to the Purchaser file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
(b) Santander Consumer shall notify the Purchaser in writing within ten (10) days following the occurrence of (i) any change in Santander Consumer’s organizational structure as a corporation, (ii) any change in Santander Consumer’s “location” (within the meaning of Section 9-307 of the UCC of all applicable jurisdictions) and (iii) any change in Santander Consumer’s name, and (A) shall take all action prior to making such change (or shall have made arrangements to take such action substantially simultaneously with such change, if it is not practicable to take such action in advance) reasonably necessary or advisable in the opinion of the Purchaser to amend all previously filed financing statements or continuation statements described in paragraph (a) above and (B) shall deliver to the Indenture Trustee within 30 days after such change an Opinion of Counsel either (a) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Issuer in the Receivables or (b) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(c) Santander Consumer shall maintain (or shall cause the Servicer to maintain) its computer systems so that, from time to time after the conveyance under this Agreement of the Receivables, the master computer records (including any backup archives) that refer to a Receivable shall indicate clearly the interest of the Purchaser (or any subsequent assignee of the Purchaser) in such Receivable and that such Receivable is owned by such Person. Indication of such Person’s interest in a Receivable shall not be deleted from or modified on such computer systems until, and only until, the related Receivable shall have been paid in full or repurchased.
(d) If at any time Santander Consumer shall propose to sell, grant a security interest in or otherwise transfer any interest in motor vehicle receivables to any prospective purchaser, lender or other transferee, Santander Consumer shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Purchaser (or any subsequent assignee of the Purchaser).
Title and Risk 8.1 Title in the Goods passes to the Purchaser on payment by the Purchaser of the Price in full. Where the Purchaser has not paid the Company the Price in full and risk has transferred, the Purchaser agrees to hold the Goods as a fiduciary for the Company.
8.2 Notwithstanding clause 8.1 above, risk in the Goods passes to the Purchaser from the first occurrence of:
(a) the passing of title in the Goods to the Purchaser;
(b) the physical delivery of the Goods to the Purchaser;
(c) the time when the Goods have been dispatched from the premises of the Company or another location nominated by the Company, or placed on a carrier which is to effect delivery of the Goods from the Company or another location nominated by the Company to the Purchaser, where the carrier has been nominated, arranged or retained by the Purchaser; or
(d) the time when the Goods arrive at the premises of the Purchaser (prior to being taken off the carrier) where the carrier which is to effect delivery of the Goods from the Company or another location nominated by the Company to the Purchaser has been nominated, arranged or retained by the Company; or
(e) if Goods are stored by the Company on behalf of the Purchaser in accordance with Clause 9.
8.3 The Company is not liable for any loss or damage or deterioration of the Goods after risk in the Goods has passed to the Purchaser.
8.4 In addition to any other rights the Company may have against the Purchaser, the Company may repossess the Goods if any amount due in respect of the Goods is outstanding or if the Company reasonably believes that any such amount will not be paid in full when it falls due for payment. The Purchaser grants the Company an irrevocable licence to enter upon any premises of the Purchaser for the purpose of taking possession of the Goods in accordance with this clause.
8.5 The Purchaser may sell and deliver the Goods as the Company's fiduciary to a third party in the ordinary course of the Purchaser's business provided that:
(a) where the Purchaser is paid by the third party for the Goods, the Purchaser shall account to the Company in respect of the payment in accordance with the Purchaser's fiduciary obligations; and
(b) where the Purchaser is not paid by the third party the Purchaser agrees to assign to the Company its claim against the third party upon receiving the Company's written request to that effect.
8.6 For the purposes of clause 8.4 and clause 8.5, where the Company supplies particular Goods of the same or similar nature on multiple occasions, where the Purchaser does not make payment in respect of particular Goods, the non-payment is treated as being first in respect of particular Goods of the same or similar nature still in the possession of the Purchaser, and then against particular Goods which have passed out of the possession of the Purchaser.
