Common use of Agreements of Borrower Clause in Contracts

Agreements of Borrower. Borrower hereby unconditionally covenants and agrees as follows: (a) to observe, perform and discharge, diligently and punctually, in all material respects, all the obligations imposed upon the Borrower under the Leases and MH Contracts and not to do or knowingly permit to be done anything to impair the Leases and MH Contracts or the liens and security interests in the Homes securing same; and Borrower shall give prompt notice to Lender of any known failure on the part of the Borrower to observe, perform and discharge in all material respects any of Borrower’s obligations under this paragraph or under any other portion of this Agreement; (b) except in accordance with prudent business judgment exercised by Borrower in good faith, not to request, encourage or demand early payment from any Homeowner or Tenant for any amount due under the Leases and MH Contracts; (c) except in accordance with prudent business judgment exercised by Borrower in good faith, not grant any period of reduced or abated payments under any of the Leases and MH Contracts; (d) not to execute any assignment of the rights or interests of Borrower in the Leases and MH Contracts, or the liens and security interests in the Homes securing same without Lender’s prior written consent; (e) to execute and deliver at the request of Lender all such further reasonable assurances and written instruments and take all such other action with respect to the Leases and MH Contracts and the liens and security interests in the Homes securing same as Lender shall from time to time may reasonably request in writing in order to carry out the purpose and intent of this Agreement, provided that no such assurance, instruments or actions shall increase Borrower’s obligations or reduce any of Borrower’s rights under this Agreement; (f) to enforce, in the name of Borrower, and at the cost, expense and risk of Borrower, the payment of the Leases and MH Contracts and the performance of each and every material obligation, term, covenant, condition and agreement in the Leases and MH Contracts to be performed by any other party thereto, except as otherwise waived by Borrower in accordance with prudent business judgment exercised by Borrower; and if determined appropriate by Borrower in the exercise of its prudent business judgment, Borrower shall appear in and defend any action or proceeding arising under, occurring out of or in any manner connected with the Leases and MH Contracts or the Homes securing same, and upon request by Lender, Borrower will do so in the name and on behalf of Lender, but at the expense of the Borrower, and Borrower shall pay all reasonable costs and expenses of Lender, including reasonable attorney’s fees and disbursements, in any action or proceeding in which Lender may appear; (g) except as deemed necessary or otherwise advisable by prudent business judgment exercised by Borrower, not to waive, excuse, discount, set-off, compromise or in any manner release or discharge any party to the Leases and MH Contracts from any monetary or other obligations, covenants, conditions and agreements to be kept, observed and performed by such party, including, without limitation, the obligation to pay amounts due thereunder, in the manner and at the time and place specified therein; (h) TO INDEMNIFY AND HOLD LENDER HARMLESS FROM AND AGAINST ALL CLAIMS AND CAUSES OF ACTION OF EVERY KIND AND NATURE, INCLUDING REASONABLE ATTORNEY’S FEES, EXPERT WITNESS FEES AND COURT COSTS, ARISING OUT OF OR RELATED TO THE LEASES, MH CONTRACTS AND THE HOMES SECURING SAME ARISING DURING THE PERIOD WHICH BUYER MAINTAINS ITS TERMINABLE LICENSE TO THE HOMES. THIS INDEMNITY IS NOT INTENDED TO COVER CLAIMS AND CAUSES OF ACTION CAUSED BY LENDER’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; AND (i) to reimburse Lender for all reasonable costs and expenses, including reasonable attorney’s fees, incurred by Lender in connection with Lender’s exercise of its rights provided under this Agreement or the other Loan Documents to cure any of Borrower’s defaults under the Leases and MH Contracts, with the enforcement of the Leases and MH Contracts and the liens and security interests in the Homes securing same, the repossession and/or foreclosure of the Homes, and the storage and sale of the Homes.

Agreements of Borrower. Borrower hereby unconditionally covenants and agrees as followsshall: (a) Keep all its Inventory and other Goods, unless Lender shall otherwise consent in writing, at one or more of its own premises (as shown on SCHEDULE V hereto) or at one or more of the premises listed on SCHEDULE VI hereto; PROVIDED, HOWEVER, that (i) so long as no Event of Default or Unmatured Insolvency Default shall have occurred and be continuing, and subject to observeSECTION 6(J), perform and discharge, diligently and punctually, in all material respects, all the obligations imposed upon the Borrower under the Leases and MH Contracts and not to do or knowingly permit to may designate additional premises (such premises shall be done anything to impair the Leases and MH Contracts or the liens and security interests located in the Homes securing same; and Borrower shall give prompt notice contiguous continental United States) for inclusion on SCHEDULE V hereto upon delivery to Lender of (A) 30 days' advance written notice and (B) all documents, and completion of all action, required by Lender to maintain the Security Interest in favor of Lender in the Collateral, free and clear of any known failure on other Security Interest whatsoever except for Permitted Liens and (ii) in the part case of the Borrower premises listed on SCHEDULE VI hereto from time to observetime, perform Borrower's Inventory and discharge in all material respects any other Goods shall be kept separate from the Inventory and other Goods of those Persons (other than Borrower’s obligations under this paragraph ) using such premises and shall be clearly and conspicuously designated as being Borrower's sole property (for example, by posting signs or under any by affixing Borrower's name on its Inventory and other portion of this Agreement;Goods). (b) except Immediately notify Lender of (i) the occurrence of any event causing loss or depreciation in accordance with prudent business judgment exercised by Borrower value of any of Borrower's Goods in good faithexcess, not to requestin the aggregate during any of Borrower's fiscal years, encourage of $40,000, and (ii) the amount of such loss or demand early payment from any Homeowner or Tenant for any amount due under the Leases and MH Contracts;depreciation. (c) except in accordance with prudent business judgment exercised by Borrower in good faithFurnish Lender such information concerning Borrower, not grant any period of reduced or abated payments under any of the Leases Collateral and MH Contracts;the Account Debtors as Lender may from time to time reasonably request. (d) not Defend Borrower's title to execute any assignment of the rights or interests of Borrower in the Leases Collateral against all Persons and MH Contracts, or the liens against all claims and security interests in the Homes securing same without Lender’s prior written consent;demands whatsoever. (e) Do all acts reasonably necessary to execute maintain, preserve and deliver protect all Collateral, keep all Collateral in good condition and repair (ordinary wear and tear excepted), and prevent any waste or unusual or unreasonable depreciation thereof. (f) Permit Lender and designees of Lender, from time to time, to inspect at reasonable times the Collateral, and to, at reasonable times, inspect, audit and make copies of and extracts from all records and all other papers in the possession of Borrower and will, upon request of Lender, deliver to Lender all of such further reasonable assurances records and written instruments papers which pertain to the Collateral and the Account Debtors. (g) Upon request of Lender, stamp on its records concerning the Collateral (and/or enter into its computer records concerning the Collateral), a notation, in form satisfactory to Lender, of the Security Interest created hereby. (h) Except for the sale or lease of Inventory in the ordinary course of its business and except as otherwise permitted by the Secured Credit Agreement, not sell, lease, assign, license, sublicense, abandon or otherwise transfer, or create or permit to exist any Security Interest (other than any Permitted Lien) on any Collateral to or in favor of anyone other than Lender. (i) At all times keep all Inventory and Equipment insured against loss, damage, theft and other risks in the manner required by Section 11.4 of the Secured Credit Agreement (whether or not the Secured Credit Agreement shall be in effect) and, if Lender so requests, deposit with Lender originals or certified copies of the relevant policies and certificates of insurance. (j) Furnish to Lender, in accordance with Section 9.2 of the Secured Credit Agreement, notice in writing as soon as possible and in any event no later than 30 days prior to the occurrence from time to time of (i) any change in the location of Borrower's chief executive office and (ii) any change in the name of Borrower or the name under or by which it conducts its business, and take all such action required by Lender to maintain and preserve the Security Interest in favor of Lender in the Collateral, free and clear of any other action Security Interest whatsoever except for Permitted Liens. (k) Reimburse Lender for all expenses, including attorneys' fees and legal expenses and expenses of any repairs to realty or other property to which any Collateral may be affixed or be a part, incurred by Lender in seeking to collect or enforce any rights under or with respect to the Leases Collateral, in seeking to collect the Notes and MH Contracts all other Liabilities, and in enforcing its rights hereunder, together with interest thereon from the date incurred until reimbursed by Borrower at a rate per annum equal to the default rate specified in SECTION 11(B) hereof, after notice to Borrower, if any, as required by the Secured Credit Agreement. (l) Not sell, assign or license to any third party any of its right, title or interest in any of the Intellectual Property Collateral and General Intangibles other than in Borrower's ordinary course of business. (m) Not, unless Borrower shall either (i) reasonably and in good faith determine (and notice of such determination shall have been delivered to Lender) that any of the Patent Collateral is of negligible economic value to Borrower, or (ii) have a valid business purpose to do otherwise, do any act, or omit to do any act, whereby any of the Patent Collateral may lapse or become abandoned or dedicated to the public or unenforceable. (n) Not, and shall not permit any of its licensees to, unless Borrower shall either (i) reasonably and in good faith determine (and notice of such determination shall have been delivered to Lender) that any of the Trademark Collateral is of negligible economic value to Borrower, or (ii) have a valid business purpose to do otherwise, (A) fail to continue to use any of the Trademark Collateral in order to maintain all of the Trademark Collateral in full force free from any claim of abandonment for non-use, (B) fail to maintain as in the past the quality of products and services offered under all of the Trademark Collateral, (C) fail to employ all of the Trademark Collateral registered with any Federal or State or foreign authority with an appropriate notice of such registration, (D) adopt or use any other Trademark which is confusingly similar or a colorable imitation of any of the Trademark Collateral except in compliance with applicable law, (E) use any of the Trademark Collateral registered with any Federal or State or foreign authority except for the uses for which registration or application for registration of such Trademark Collateral has been made except in compliance with applicable law, and (F) do or permit any act or knowingly omit to do any act whereby any of the Trademark Collateral is reasonably likely to lapse or become invalid or unenforceable. (o) Not, unless Borrower shall either (i) reasonably and in good faith determine (and notice of such determination shall have been delivered to Lender) that any of the Copyright Collateral or any of the Trade Secrets Collateral is of negligible economic value to Borrower, or (ii) have a valid business purpose to do otherwise, do or permit any act or knowingly omit to do any act whereby any of the Copyright Collateral or any of the Trade Secrets Collateral is reasonably likely to lapse or become invalid or unenforceable or placed in the public domain except upon expiration of the end of an unrenewable term of a registration thereof. (p) Notify Lender immediately if it knows that any application or registration relating to any material item of the Intellectual Property Collateral may become abandoned or dedicated to the public or placed in the public domain or invalid or unenforceable, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any foreign counterpart thereof or any court) regarding Borrower's ownership of any of the Intellectual Property Collateral, its right to register the same or to keep and maintain and enforce the same. (q) Not, nor shall any of Borrower's agents, employees, designees or licensees, file an application for the registration of any Intellectual Property Collateral with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, unless it promptly informs Lender, and, upon request of Lender, executes and delivers any and all agreements, instruments, documents and papers as Lender may reasonably request to evidence Lender's Security Interest in such Intellectual Property Collateral and the liens goodwill and security interests general intangibles of Borrower relating thereto or represented thereby. (r) Take all necessary steps, including in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, to maintain and pursue any application (and to obtain the relevant registration) filed with respect to, and to maintain any registration of, the Intellectual Property Collateral, including the filing of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings and the payment of fees and taxes (except to the extent that dedication, abandonment or invalidation is permitted under the foregoing CLAUSE (M), (N) or (O)). (s) Contemporaneously herewith, execute and deliver to Lender an Agreement (Patent), an Agreement (Trademark) and an Agreement (Copyright) in the Homes securing forms of EXHIBITS B, C and D hereto, respectively, and shall execute and deliver to Lender any other document reasonably required to acknowledge or register or perfect Lender's interest in any part of the Intellectual Property Collateral. (t) At its sole expense, (i) without any request by Lender, immediately deliver or cause to be delivered to Lender, in due form for transfer (I.E., endorsed in blank or accompanied by duly executed undated blank stock or bond powers), all certificated Securities, Chattel Paper, Instruments and Documents, if any, at any time representing all or any of the Collateral, (ii) upon request of Lender cause Lender's Security Interest hereunder and under the other Collateral Documents to be at all times duly noted on any certificate of title issuable with respect to any of the Collateral and forthwith deliver or cause to be delivered to Lender each such certificate of title, and (iii) execute and deliver, or cause to be executed and delivered, to Lender, in due form for filing or recording (and pay the cost of filing or recording the same in all public offices deemed necessary or advisable by Lender) such assignments (including, without limitation, assignments of life insurance, if Borrower elects or is otherwise required to obtain such insurance), security agreements, mortgages, deeds of trust, pledge agreements, consents, waivers, financing statements, stock or bond powers, and other documents, and do such other acts and things, all as Lender shall may from time to time may reasonably request be necessary or desirable, to the satisfaction of Lender, to establish and maintain in writing favor of Lender, a valid perfected lien on and Security Interest in order all assets of Borrower now or hereafter existing or acquired (free of all other liens, claims and rights of third parties whatsoever other than Permitted Liens) to carry out secure payment and performance of the purpose and intent of this Agreement, provided that no such assurance, instruments or actions shall increase Borrower’s obligations or reduce any of Borrower’s rights under this Agreement;Liabilities. (fu) At Lender's request after the occurrence and during the continuance of an Event of Default, transfer all or any part of the Collateral, (including, with respect to enforceany Trademarks, in the goodwill associated therewith) into the name of Borrower, and at Lender or its nominee for the cost, expense and risk of Borrower, the payment of the Leases and MH Contracts and the performance of each and every material obligation, term, covenant, condition and agreement in the Leases and MH Contracts to be performed by any other party thereto, except as otherwise waived by Borrower in accordance with prudent business judgment exercised by Borrower; and if determined appropriate by Borrower in the exercise of its prudent business judgment, Borrower shall appear in and defend any action or proceeding arising under, occurring out of or in any manner connected with the Leases and MH Contracts or the Homes securing same, and upon request by Lender, Borrower will do so in the name and on behalf benefit of Lender, but at with or without disclosing that such Collateral is subject to the expense of the Borrower, and Borrower shall pay all reasonable costs and expenses of Lender, including reasonable attorney’s fees and disbursements, in any action or proceeding in which Lender may appear;Security Interest hereunder. (gv) except as deemed necessary or otherwise advisable by prudent business judgment exercised by Borrower, not to waive, excuse, discount, set-off, compromise or in any manner release or discharge any party to At all times comply with the Leases and MH Contracts from any monetary or other obligations, covenants, conditions and agreements to be kept, observed and performed by such party, requirements of all applicable laws (including, without limitation, the obligation provisions of the Fair Labor Standards Act), rules, regulations and orders of every governmental authority, the non- compliance with which, as Lender determines would be reasonably likely to pay amounts due thereunder, in materially and adversely affect the manner and at value of the time and place specified therein; (h) TO INDEMNIFY AND HOLD LENDER HARMLESS FROM AND AGAINST ALL CLAIMS AND CAUSES OF ACTION OF EVERY KIND AND NATURE, INCLUDING REASONABLE ATTORNEY’S FEES, EXPERT WITNESS FEES AND COURT COSTS, ARISING OUT OF OR RELATED TO THE LEASES, MH CONTRACTS AND THE HOMES SECURING SAME ARISING DURING THE PERIOD WHICH BUYER MAINTAINS ITS TERMINABLE LICENSE TO THE HOMES. THIS INDEMNITY IS NOT INTENDED TO COVER CLAIMS AND CAUSES OF ACTION CAUSED BY LENDER’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; AND (i) to reimburse Lender for all reasonable costs and expenses, including reasonable attorney’s fees, incurred by Lender in connection with Lender’s exercise of its rights provided under this Agreement Collateral or the other Loan Documents to cure any of Borrower’s defaults under the Leases and MH Contracts, with the enforcement worth of the Leases and MH Contracts and the liens and security interests in the Homes securing sameCollateral as collateral security, the repossession and/or foreclosure of the Homes, and the storage and sale of the Homestaken as a whole.

Agreements of Borrower. Borrower hereby unconditionally covenants and agrees as followsfollow▇: (a) Upon the occurrence of an Ev▇▇▇ ▇▇ Default, Borrower irrevocably appoints Lender its true and lawful attorney-in-fact, at the option of Lender at any time and from time to observetime, to take possession and control of the Mortgaged Estate, pursuant to Borrower's rights as lessor under the Leases, and to demand, receive and enforce payment, to give receipts, releases and satisfaction and to sue, in the name of Borrower or Lender, for all Rents; (b) If any of the Leases provide for a security deposit paid by the Tenant thereunder to Borrower, this Assignment shall transfer to the Lender all of Borrower's right, title and interest in and to such security deposits; provided, however, that Borrower shall have the right to retain such security deposits so long as no Event of Default shall have occurred; and provided, further, that Lender shall have no obligation to any such Tenant with respect to such security deposits unless and until Lender comes into actual possession and accepts control of such security deposits by notice to such Tenant; (c) With respect to any Lease or Leases of 7,500 square feet or more (in the aggregate) to any single Tenant, Borrower shall not terminate any such Lease (except pursuant to the terms of such Lease upon a default by the Tenant thereunder), grant concessions or modify or amend any such Lease in any material manner, or consent to an assignment or subletting, without the prior written consent of Lender; (d) Borrower has not and shall not collect any Rent more than one (1) month in advance of the date on which it becomes due under the terms of each Lease, or discount any future accruing Rent, or waive any right of setoff against any Tenant under the Leases; (e) Except with the prior written consent of Lender, Borrower shall not permit a subordination of any Lease to any mortgage, deed of trust or other encumbrance, or any other lease, now or hereafter affecting the Mortgaged Estate or any part thereof, or permit the conversion of any Lease to a sublease; (f) Borrower shall faithfully perform and discharge, diligently and punctually, in discharge all material respects, all obligations of the obligations imposed upon the Borrower landlord under the Leases Leases, and MH Contracts and not to do or knowingly permit to be done anything to impair the Leases and MH Contracts or the liens and security interests in the Homes securing same; and Borrower shall give prompt written notice to Lender of any known failure on the part of the Borrower to observe, perform and discharge in all material respects any notice of Borrower’s obligations under this paragraph 's default received from a Tenant or under any other portion person and shall ▇▇▇▇▇▇▇ Lender with a complete copy of this Agreementsaid notice; (bg) except in accordance with prudent business judgment exercised by Borrower in good faith, not to request, encourage or demand early payment from any Homeowner or Tenant for any amount due under the Leases and MH Contracts; (c) except in accordance with prudent business judgment exercised by Borrower in good faith, not grant any period of reduced or abated payments under any of the Leases and MH Contracts; (d) not to execute any assignment of the rights or interests of Borrower in the Leases and MH Contracts, or the liens and security interests in the Homes securing same without Lender’s prior written consent; (e) to execute and deliver at Upon the request of Lender, Borrower shall promptly provide to Lender all such further reasonable assurances a true and written instruments and take all such other action correct copy of ▇▇▇ ▇xisting Leases; and (h) Nothing herein shall be construed to constitute Lender as a "mortgagee in possession" in the absence of its taking of actual possession of the Mortgaged Estate pursuant to the powers granted herein, or to impose any liability or obligation on Lender under or with respect to the Leases or the Mortgaged Estate. Borrower shall indemnify and MH Contracts hold Lender harmless from and against any and all liabilities, losses and damages (including attorneys' fees) that Lender may incur under the liens and security interests in the Homes securing same as Lender shall from time to time may reasonably request in writing in order to carry out the purpose and intent Leases or by reason of this Agreement, provided that no such assurance, instruments or actions shall increase Borrower’s obligations or reduce any of Borrower’s rights under this Agreement; (f) to enforce, in the name of BorrowerAssignment, and at the cost, expense of and risk from any and all claims and demands whatsoever that may be asserted against Lender by reason of Borrower, the payment of the Leases and MH Contracts and the performance of each and every material obligation, term, covenant, condition and agreement in the Leases and MH Contracts any alleged obligations to be performed or discharged by Lender under the Leases or this Assignment. Any Rent collected by Lender may be applied by Lender in its discretion in satisfaction of any other party theretosuch liability, except as otherwise waived by Borrower in accordance with prudent business judgment exercised by Borrower; and if determined appropriate by Borrower in the exercise of its prudent business judgmentloss, damage, claim, demand, costs, expense or fees. Borrower shall appear in and defend defend, at no cost to Lender, any action or proceeding arising under, occurring out of under or in any manner connected with the Leases and MH Contracts or the Homes securing same, and upon request Leases. If requested by Lender, Borrower will do so shall enforce any Lease and all remedies available to Borr▇▇▇▇ ▇gainst the Tenant in the name and on behalf case of Lender, but at default under such Lease by the expense of the Borrower, and Borrower shall pay all reasonable costs and expenses of Lender, including reasonable attorney’s fees and disbursements, in any action or proceeding in which Lender may appear; (g) except as deemed necessary or otherwise advisable by prudent business judgment exercised by Borrower, not to waive, excuse, discount, set-off, compromise or in any manner release or discharge any party to the Leases and MH Contracts from any monetary or other obligations, covenants, conditions and agreements to be kept, observed and performed by such party, including, without limitation, the obligation to pay amounts due Tenant thereunder, in the manner and at the time and place specified therein; (h) TO INDEMNIFY AND HOLD LENDER HARMLESS FROM AND AGAINST ALL CLAIMS AND CAUSES OF ACTION OF EVERY KIND AND NATURE, INCLUDING REASONABLE ATTORNEY’S FEES, EXPERT WITNESS FEES AND COURT COSTS, ARISING OUT OF OR RELATED TO THE LEASES, MH CONTRACTS AND THE HOMES SECURING SAME ARISING DURING THE PERIOD WHICH BUYER MAINTAINS ITS TERMINABLE LICENSE TO THE HOMES. THIS INDEMNITY IS NOT INTENDED TO COVER CLAIMS AND CAUSES OF ACTION CAUSED BY LENDER’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; AND (i) to reimburse Lender for all reasonable costs and expenses, including reasonable attorney’s fees, incurred by Lender in connection with Lender’s exercise of its rights provided under this Agreement or the other Loan Documents to cure any of Borrower’s defaults under the Leases and MH Contracts, with the enforcement of the Leases and MH Contracts and the liens and security interests in the Homes securing same, the repossession and/or foreclosure of the Homes, and the storage and sale of the Homes.