Additional Collateral Provisions. (a) If any Collateral is in the possession or control of any agents or processors of a Debtor and Agent so requests, such Debtor agrees to notify such agents or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, at any time processing, labeling, packaging, holding, storing, shipping or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verify. (b) Each Debtor agrees from time to time to deliver to Agent such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably request. Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be subject to the terms of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewith. (c) Section 3 of the Perfection Certificate contains a true, complete, and current listing of all patents, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein). (d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly. (e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral. (f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended shall be repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended. (g) Debtors will defend the Collateral against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors agree to comply with the requirements of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral.
Appears in 1 contract
Sources: Loan and Security Agreement (1st FRANKLIN FINANCIAL CORP)
Additional Collateral Provisions. (a) If any Collateral is in the possession or control of any agents or processors of a Debtor and Agent so requests, such Debtor agrees to notify such agents or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, at any time processing, labeling, packaging, holding, storing, shipping or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verify.
(b) Each Debtor agrees from time to time to deliver to Agent such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably request. Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be subject to the terms of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewith.
(c) Section 3 of the Perfection Certificate contains a true, complete, and current listing of all patents, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein).
(d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral.
(f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended shall be repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended.
(g) Debtors Borrowers will defend the Collateral against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors Borrowers agree to comply with the requirements of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the CollateralCollateral including, without limitation, executing such documents as Agent may require to obtain control over all Deposit Accounts, Letter-of-Credit Rights and Investment Property, as applicable. Furthermore, Borrowers shall promptly notify Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of Agent, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by Agent to give Agent a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. Collateral shall include any such Commercial Tort Claim, and the authorization given by Borrowers to Agent in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such Commercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the date hereof.
(b) In addition to the foregoing, Borrowers shall perform all further acts that may be lawfully and reasonably required by Agent to secure Agent and effectuate the intentions and objects of this Agreement, including, but not limited to, the execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain Acknowledgment and Waiver Agreements. At the request of Agent, Borrowers shall, immediately deliver (with execution by Borrowers of all necessary documents or forms to reflect, implement or enforce all Liens described herein thereon) to Agent all certificates of title to note the Lien of Agent thereon and all items of Collateral for which Agent must receive possession to obtain and/or maintain perfected security interests.
Appears in 1 contract
Additional Collateral Provisions. (a) If It is expressly agreed by Borrower that, notwithstanding anything herein to the contrary, Borrower shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform all the conditions and obligations to be observed and performed by it thereunder, and Lender shall have no obligation or liability whatsoever to any Collateral is Person under any such contract, instrument, permit or license (between Borrower and any Person other than Lender) by reason of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the possession obligations of Borrower, (ii) to make any payment or control inquiry, or (iii) to take any action of any agents kind to collect or processors enforce any performance or the payment of a Debtor and Agent so requests, such Debtor agrees any amounts which may have been assigned to notify such agents it or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, which it may be entitled at any time processingor times under or pursuant to any such contract, labelinginstrument, packaging, holding, storing, shipping permit or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verifylicense.
(b) Each Debtor agrees Upon the request of Lender, after the occurrence and during the continuance of an Event of Default, Borrower, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Lender at any time and from time to time time, promptly upon Lender’s request, the following reports: (i) a reconciliation of all Accounts and statement of Inventory; (ii) an aging of all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts and Inventory as Lender may request. Borrower, at its own expense, shall cause its certified independent public accountants to deliver to Agent such evidence Lender the results of the existence, identity, and location any physical verifications of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably request. Agent shall have the right to verify all or any part portion of the Collateral in any manner, Inventory made or observed by such accountants when and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications if such verification is conducted. Lender shall be subject permitted to observe and consult with Borrower’s accountants in the terms performance of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewiththese tasks.
(c) Section 3 For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to Borrower) to use, transfer, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by Borrower, and wherever the same may be located, and including in such license access to all media in which any of the Perfection Certificate contains a true, completelicensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and current listing represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of all patentsany third Person; provided, trademarks, tradestyles, copyrightsthat such license will terminate upon the termination of the Lender’s Liens in the Collateral. Promptly upon the request of the Lender, and in no event later than thirty (30) days after such request, Borrower shall execute and deliver to Lender a Patent Security Agreement and shall execute and deliver all such other intellectual property rights (including documents and make all registrations filings and applications therefor) take all such other action necessary to grant to Lender a first priority security interest in all Intellectual Property owned or possessed by each Borrower. Borrower will maintain and keep good and valid title to, and protect against infringement by others of, all of the Debtors as Intellectual Property necessary for the current and planned future conduct of its business and the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing manufacture and production of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein)its products.
(d) Schedule 5 Lender shall have no duty of care with respect to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise Collateral except that Lender shall exercise reasonable care with respect to the claimCollateral in Lender’s custody. Each Debtor agrees Lender shall be deemed to notify Agent promptly have exercised reasonable care if it becomes aware of any Commercial Tort Claim of such Debtor property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such action with an value (estimated by respect to the Debtors Collateral as Borrower shall request or agree to in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require writing provided that neither failure to comply with the UCC and any other applicable law, (ii) such agreements request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to patentsthe Collateral in Lender’s custody. All risk, trademarksloss, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements damage or destruction of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral.
(f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended Collateral shall be repayable borne by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expendedBorrower.
(g) Debtors will defend the Collateral against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors agree to comply with the requirements of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral.
Appears in 1 contract
Additional Collateral Provisions. (a) If It is expressly agreed by Borrower that, notwithstanding anything herein to the contrary, Borrower shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform all the conditions and obligations to be observed and performed by it thereunder, and Lender shall have no obligation or liability whatsoever to any Collateral is Person under any such contract, instrument, permit or license (between Borrower and any Person other than Lender) by reason of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the possession obligations of Borrower, (ii) to make any payment or control inquiry, or (iii) to take any action of any agents kind to collect or processors enforce any performance or the payment of a Debtor and Agent so requests, such Debtor agrees any amounts which may have been assigned to notify such agents it or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, which it may be entitled at any time processingor times under or pursuant to any such contract, labelinginstrument, packaging, holding, storing, shipping permit or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verifylicense.
(b) Each Debtor agrees from time After the occurrence and during the continuance of an Event of Default, Borrower, at its own expense, shall cause the certified public accountant then engaged by Borrower to time to prepare and deliver to Agent Lender promptly upon Lender’s reasonable request, the following reports: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) test verifications of such evidence of the existence, identity, and location of its Collateral and of its availability Accounts as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent Lender may reasonably request. Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications Lender shall be subject permitted to observe and consult with Borrower’s accountants in the terms performance of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewiththese tasks.
(c) Section 3 For the purpose of enabling Lender to exercise its rights and remedies under the Loan Documents, Borrower hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to Borrower) to use, transfer, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by Borrower, and wherever the same may be located, and including in such license access to all media in which any of the Perfection Certificate contains a true, completelicensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and current listing represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of all patentsany third Person; provided, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each that such license will terminate upon the termination of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any DebtorLender’s failure to do so shall not impair Agent’s security interest therein).
(d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent Liens in the Collateral.
(fd) On failure Lender shall have no duty of any Debtor care with respect to perform any of the covenants and agreements herein contained, Agent may, at its option, perform Collateral except that Lender shall exercise reasonable care with respect to the same and Collateral in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereofLender’s custody. All such sums and amounts so expended Lender shall be repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though deemed to have exercised reasonable care if such Obligations were Loans). No property is accorded treatment substantially equal to that which Lender accords its own property or if Lender takes such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended.
(g) Debtors will defend the Collateral against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same as Borrower shall request or any interest therein. Debtors agree to in writing provided that neither failure to comply with any such request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Lender’s failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to the requirements Collateral in Lender’s custody. All risk, loss, damage or destruction of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the CollateralCollateral shall be borne by Borrower.
Appears in 1 contract
Additional Collateral Provisions. (a) If any Collateral is in the possession or control of any agents or processors of a Debtor and Agent so requests, such Debtor agrees to notify such agents or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, at any time processing, labeling, packaging, holding, storing, shipping or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verify.
(b) Each Debtor agrees from time to time to deliver to Agent such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably request. Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be subject to the terms of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewith.
(c) Section 3 of the Perfection Certificate contains a true, complete, and current listing of all patents, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein).
(d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral.
(f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended shall be repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended.
(g) Debtors Borrowers will defend the Collateral against all Liens (other than Permitted LiensLiens of WFPC, DSC and other Liens expressly permitted pursuant to Section 7.6), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors agree Furthermore, Borrowers shall promptly notify WFPC in writing upon incurring or otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of WFPC, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by WFPC to comply give WFPC a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. The definition of “Collateral” shall include any such Commercial Tort Claim, and the authorization given by Borrowers to WFPC in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such Commercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the requirements date hereof.
(b) In addition to the foregoing, Borrowers shall perform all further acts that may be lawfully and reasonably required by WFPC to secure WFPC and effectuate the intentions and objects of this Agreement, including, but not limited to, the execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain landlord waivers. At the request of WFPC, Borrowers shall, immediately deliver (with execution by Borrowers of all state necessary documents or forms to reflect, implement or enforce all Liens described herein thereon) to WFPC all certificates of title to note the Lien of WFPC thereon and federal laws and requests all items of Agent in order Property for Agent which WFPC must receive possession to have and obtain and/or maintain a valid and perfected first security interest and/or mortgage Lien in the Collateralinterests.
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Additional Collateral Provisions. (a) If It is expressly agreed by Borrower that, notwithstanding anything herein to the contrary, each Secured Credit Party shall remain liable under each item of Collateral consisting of a contract, instrument, permit or license to observe and perform all the conditions and obligations to be observed and performed by it thereunder, and Agent shall have no obligation or liability whatsoever to any Collateral is Person under any such contract, instrument, permit or license (between the Secured Credit Party and any Person other than Agent) by reason of or arising out of the execution, delivery or performance of the Financing Documents, and Agent shall not be required or obligated in any manner (i) to perform or fulfill any of the possession obligations of a Secured Credit Party, (ii) to make any payment or control inquiry, or (iii) to take any action of any agents kind to collect or processors enforce any performance or the payment of a Debtor and Agent so requests, such Debtor agrees any amounts which may have been assigned to notify such agents it or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, which it may be entitled at any time processingor times under or pursuant to any such contract, labelinginstrument, packaging, holding, storing, shipping permit or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verifylicense.
(b) Each Debtor agrees After the occurrence and during the continuance of an Event of Default so long as there are Revolving Loan Outstandings, Borrower, at its own expense, shall cause the certified public accountant then engaged by Borrower to prepare and deliver to Agent at any time and from time to time time, promptly upon Agent's request, the following reports for all Secured Credit Parties: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Agent may request. Borrower, at its own expense, shall cause its certified independent public accountants to deliver to Agent such evidence the results of the existence, identity, and location any physical verifications of its Collateral and all or any portion of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created any inventory made or acquired observed by such Debtor, copies of customer invoices or the equivalent accountants when and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with if such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably requestverification is conducted. Agent shall have be permitted to observe and consult with Borrower's accountants in the right to verify all or any part performance of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be subject to the terms of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewiththese tasks.
(c) Section 3 Agent shall have no duty of care with respect to the Perfection Certificate contains a true, complete, and current listing Collateral except that Agent shall exercise reasonable care with respect to the Collateral in Agent's custody or in the collection of all patents, trademarks, tradestyles, copyrights, and other intellectual Collateral that Agent chooses to collect. Lender shall be deemed to have exercised reasonable care if such property rights (including all registrations and applications therefor) owned by each of is accorded treatment substantially equal to that which Agent accords its own property or if Agent takes such action with respect to the Debtors Collateral as of the Closing Date that are registered with any governmental authority. The Debtors Borrower shall promptly notify Agent request or agree to in writing of any additional intellectual property rights acquired or arising after the date hereof provided that are or are required to be registered with any governmental authority (provided any Debtor’s neither failure to do so shall not impair Agent’s security interest therein).
(d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements request nor any omission to do any such act requested by Borrower shall be deemed a failure to exercise reasonable care. Agent's failure to take steps to preserve rights against any parties or property shall not be deemed to be failure to exercise reasonable care with respect to patentsthe Collateral in Agent's custody. All risk, trademarksloss, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements damage or destruction of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral.
(f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended Collateral shall be repayable borne by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, Borrower and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expendedother Credit Parties.
(g) Debtors will defend the Collateral against all Liens (other than Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors agree to comply with the requirements of all state and federal laws and requests of Agent in order for Agent to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral.
Appears in 1 contract
Sources: Credit Agreement (Radiologix Inc)
Additional Collateral Provisions. (a) If any Collateral is in the possession or control of any agents or processors of a Debtor and Agent so requests, such Debtor agrees to notify such agents or processors in writing of Agent’s lien and security interest therein and instruct them to hold all such Collateral for Agent’s account and subject to Agent’s instructions. Each Debtor will, upon the request of Agent, authorize and instruct all bailees and any other parties, if any, at any time processing, labeling, packaging, holding, storing, shipping or transferring all or any part of the Collateral to permit the Secured Parties and their respective representatives to examine and inspect any of the Collateral then in such party’s possession and to verify from such party’s own books and records any information concerning the Collateral or any part thereof which the Secured Parties or their respective representatives may seek to verify.
(b) Each Debtor agrees from time to time to deliver to Agent such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the equivalent and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered by it, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of its Inventory and Equipment by major category and location), in each case as Agent may reasonably request. Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which Agent considers appropriate and reasonable (provided the Debtors’ obligation to reimburse the Secured Parties for any costs of verifications shall be subject to the terms of this Agreement), and each Debtor agrees to furnish all assistance and information, and perform any acts, which Agent may reasonably require in connection therewith.
(c) Section 3 of the Perfection Certificate contains a true, complete, and current listing of all patents, trademarks, tradestyles, copyrights, and other intellectual property rights (including all registrations and applications therefor) owned by each of the Debtors as of the Closing Date that are registered with any governmental authority. The Debtors shall promptly notify Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are or are required to be registered with any governmental authority (provided any Debtor’s failure to do so shall not impair Agent’s security interest therein).
(d) Schedule 5 to the Perfection Certificate contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the Closing Date, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to notify Agent promptly if it becomes aware of any Commercial Tort Claim of such Debtor with an value (estimated by the Debtors in good faith) in excess of $250,000 individually or $1,000,000 in the aggregate. Each Debtor agrees to execute and deliver to Agent an agreement in the form reasonably acceptable to Agent to perfect Agent’s Lien on such Commercial Tort Claim promptly.
(e) Each Debtor agrees to execute and deliver to Agent such further agreements, assignments, instruments, and documents, and to do all such other things, as Agent may reasonably deem necessary or appropriate to assure Agent its lien and security interest hereunder, including, without limitation, (i) such financing statements or other instruments and documents as Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as Agent may from time to time reasonably require to comply with the filing requirements of the United States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts (except as otherwise provided for in this Agreement), Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as Agent may from time to time reasonably require. Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse Agent for all reasonable costs and expenses incurred in connection with such lien searches. Each Debtor agrees to mark its books and records to reflect the lien and security interest of Agent in the Collateral.
(f) On failure of any Debtor to perform any of the covenants and agreements herein contained, Agent may, at its option, perform the same and in so doing may expend such sums as Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended shall be repayable by the Debtors upon demand, shall constitute additional Obligations secured hereunder bearing interest as provided in Section 2.6 of this Agreement (as though such Obligations were Loans). No such performance of any covenant or agreement by Agent on behalf of a Debtor, and no such advancement or expenditure therefor, shall relieve any Debtor of any default under the terms of this Agreement or in any way obligate any Secured Party to take any further or future action with respect thereto. Agent, in making any payment hereby authorized, may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. So long as Agent is acting reasonably and in good faith, Agent, in performing any act hereunder, shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. Agent is hereby authorized to charge any account of any Debtor maintained with any Secured Party for the amount of such sums and amounts so expended.
(g) Debtors Borrowers will defend the Collateral against all Liens (other than Liens of WFPC and Permitted Liens), and claims and demands of all Persons at any time claiming the same or any interest therein. Debtors Borrowers agree to comply with the requirements of all state and federal laws and requests of Agent WFPC in order for Agent WFPC to have and maintain a valid and perfected first security interest and/or mortgage Lien in the Collateral including, without limitation, executing such documents as WFPC may require to obtain control over all Deposit Accounts, Letter-of-Credit Rights and Investment Property. Furthermore, Borrowers shall promptly notify WFPC in writing upon incurring or otherwise obtaining a Commercial Tort Claim against any third party, and, upon the request of WFPC, shall promptly enter into such security agreements and do such other things or acts deemed appropriate by WFPC to give WFPC a fully valid, perfected and enforceable security interest in any such Commercial Tort Claim. The definition of “Collateral” shall include any such Commercial Tort Claim, and the authorization given by Borrowers to WFPC in Section 3.2 above to file financing statements covering the Collateral shall include the authorization to file financing statements with respect to any such Commercial Tort Claim. Borrowers warrant and represent that they do not own any Commercial Tort Claims as of the date hereof.
(b) In addition to the foregoing, Borrowers shall perform all further acts that may be lawfully and reasonably required by WFPC to secure WFPC and effectuate the intentions and objects of this Agreement, including, but not limited to, the execution and delivery of lockbox agreements, cash collateral account agreements, mortgages, security agreements, contracts and any other documents required hereunder, as well as obtain Acknowledgment and Waiver Agreements. At the request of WFPC, Borrowers shall, immediately deliver (with execution by Borrowers of all necessary documents or forms to reflect, implement or enforce all Liens described herein thereon) to WFPC all certificates of title to note the Lien of WFPC thereon and all items of Property for which WFPC must receive possession to obtain and/or maintain perfected security interests.
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