Covenants, Agreements, Representations and Warranties. The Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party that: (a) The Debtor is the sole and lawful owner of the Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder. (b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect. (c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party. (d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party. (e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor. (f) Subject to Section 4 hereof, without the Secured Party’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, or otherwise dispose of the Collateral or any part thereof or any interest therein. (g) The Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction. (h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party that:
(a) The Debtor Debtor's organizational registration number is the sole and lawful owner of the Collateralset forth on Schedule A attached hereto, and has full right, power its chief executive office and authority to enter into this Agreement and to perform each and all principal place of business located at the matters and things herein provided foraddress listed on Schedule A attached hereto. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences executive offices or places of business other than those listed on Schedule A. The Collateral owned or leased by Debtor is and shall remain in Debtor's possession or control at the location listed on Schedule A (exclusive collectively the "Permitted Collateral Locations"), except as to any Collateral sold or otherwise disposed of vacation homes)as permitted under this Agreement, including the last sentence of this paragraph. The If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, Secured Party shall nevertheless have and retain a Lien on and security interest therein. Debtor shall not move its principal residence chief executive office or maintain a residence place of business other than at a Permitted Collateral Location or permit any Collateral to be located at a location other than those a Permitted Collateral Location (other than as specified on Schedule Ain the second sentence of this paragraph), in each case without first providing the Secured Party at least 30 days’ days prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effectthereof.
(cb) The Debtor’s 's legal name and state of organization is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any other trade name without first giving providing Secured Party at least 30 days’ days prior written notice of its intent to do so to the Secured Partythereof.
(dc) The Collateral and every part thereof is and shall be free and clear of all security interests, liens Liens (including, without limitation, statutory liens), attachments, levies other than Permitted Liens and encumbrances the Lien granted hereunder) of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons parties at any time claiming the same or any interest in the Collateral adverse to Secured Party (other than Permitted Liens ).
(d) Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral, except to the extent that, in the reasonable business judgment of Debtor, any such Collateral is no longer necessary for the proper conduct of the business of Debtor. Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that Secured PartyParty has no responsibility to perform such obligations.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(f) Subject to Section 4 hereofany restrictions in or pursuant to this Agreement and any other document, agreement or instrument between Debtor and Secured Party, Debtor agrees it will not, without the Secured Party’s 's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein, except for sales of inventory in the ordinary course of business pursuant to Section 6(b).
(f) Debtor will at all times allow Secured Party and its representatives free access to and right of inspection of the Collateral and all books and records of Debtor relating to the Collateral, at such reasonable times during normal business hours, and upon reasonable notice and intervals as Secured Party may designate. Without in any way limiting the preceding sentence, during reasonable business hours and upon reasonable notice and intervals, Secured Party or its agents shall have the right to examine its Collateral and review and copy any and all information and data relating to such property, or to any related transactions, wherever and however such information and data may be stored. In the event that the use of a computer system is required for access to which Secured Party is entitled, including without limitation, access to any premises, place, Collateral, books of account, records, reports, information or data, it shall allow Secured Party the use of its computer system for such purpose and shall provide reasonable assistance in that regard, including, without limitation, making known to Secured Party any password, access number or other code required for such access. If for any reason the information and data cannot be accessed and retrieved at its premises, Secured Party may remove the medium in which such information or data is stored from such premises to any other place for the purpose of giving Secured Party the opportunity to retrieve, record or copy such information and data. Secured Party shall be entitled to reproduce and retain a copy of any such information and data in any format whatsoever. If any of the above items is in the possession of a third party, Debtor shall take all reasonable steps to allow Secured Party the access and retrieval to which it is entitled.
(g) The If any Collateral is in the possession or control of any agents or processors of Debtor and Secured Party so requests, Debtor agrees to notify such agents or processors in writing of Secured Party's security interest therein and instruct them to, and use their best efforts to obtain agreements that they will, hold all such Collateral for Secured Party's account and subject to Secured Party's instructions. Debtor will, upon the request of Secured Party, 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 Secured Party and its representatives during normal business hours and upon reasonable notice and intervals 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 Secured Party or its representatives may seek to verify. As to any premises not owned by Debtor wherein any of the Collateral is located, if any, Debtor shall, upon Secured Party's request, use all commercially reasonable efforts to cause each party having any right, title or interest in, or Lien on, any of such premises to enter into an agreement whereby such party disclaims any right, title and interest in, and Lien on, the Collateral, allowing the removal of such Collateral by Secured Party or its agents or representatives and otherwise in form and substance reasonably acceptable to Secured Party.
(h) Upon Secured Party's reasonable request, Debtor agrees from time to time to deliver to Secured Party 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 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 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 Secured Party may reasonably request. Further to paragraph (g), Secured Party shall have the right to verify all or any part of the Collateral in any reasonable manner, and through any reasonable medium, and Debtor agrees to furnish all assistance and information, and perform any acts, which Secured Party may reasonably require in connection therewith.
(i) Debtor shall keep all of its assets and property insured and shall maintain commercial general liability coverage, and such other coverages required by the Senior Loan Documents (including, but not limited to, earthquake coverage and insurance against flood), by insurers, in amounts and in the form specified in the Senior Loan Documents. Upon request of Secured Party, Debtor shall provide certificates relating to such policies and/or copies of such policies (including any amendments, renewals, or modifications thereto), as requested by Secured Party. At the request of Secured Party at any time when there are any Obligations outstanding, Secured Party shall be named as an additional insured and as a loss payee under Debtor's insurance policies, subject to the rights of the Senior Lender. In case of loss or damage by fire or other casualty, Debtor shall give prompt written notice thereof to the insurers and to Secured Party and, casualty insurance proceeds that are not applied to reduce the Senior Loan or restore the assets in accordance with the Senior Loan Documents shall be applied to reduce the Obligations or restore the assets as determined by Secured Party.
(j) Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(k) Schedule B attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights or licenses, patent applications and other intellectual property rights owned by Debtor, whether or not registered with any governmental authority, including without limitation the U.S. Copyright Office or the U.S. Patent and Trademark Office. Debtor shall promptly notify Secured Party in writing of Debtor's acquisition of any additional intellectual property rights after the date hereof, or the acquisition or development of any other intellectual property rights that (when acquired or developed) do not become subject to a perfected security interest in favor of Secured Party. Debtor shall submit to Secured Party a supplement to Schedule B to reflect such additional intellectual property rights acquired or developed by Debtor (provided Debtor's failure to do so shall not impair Secured Party's security interest therein).
(l) Debtor agrees to execute and deliver, and shall cause the Intermediary deliver to execute and deliver, to the Secured Party (or authorize Secured Party to file, in the case of (i) below, as described below in this paragraph) such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest Lien hereunder, includingand the ability to enforce its rights hereunder, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law, and (ii) such assignment agreements as Secured Party may from time to time reasonably require with respect to the intellectual property in Section 3(j) 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 all Deposit Accounts, Securities Accounts, Letter-of-Credit Rights, and electronic Chattel Paper. The Debtor agrees to use all commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries, letter of credit issuers and other relevant Persons (as defined in Section 3(o)(vii)) or entities to execute and deliver such control agreements, as Secured Party may from time to time reasonably require. Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require, including financing statements describing the Collateral as "all assets now or hereinafter acquired" or "all personal property" or words of like meaning. Secured Party may order lien searches from time to time against Debtor and the Collateral, and Debtor shall promptly reimburse Secured Party for all reasonable costs and expenses incurred in connection with such lien searches. In the event for any reason the law of any jurisdiction other than Illinois New York or Delaware becomes or is applicable to the Collateral or any part thereof, or the respective rights and/or priorities therein, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest and relative priority of the Secured Party and Secured Party's security interest under the law laws of such other jurisdiction.
(hm) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens and encumbrancesLiens, reasonable expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or upon demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on equal to the basis annual rate at which interest accrued under the Loan Agreement during the existence of a 360-day year Default (being hereinafter referred to as the "Default Rate" for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rateObligation). No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, Party in making any payment hereby authorized, authorized may do so according to any b▇▇▇bill, statement statement, or estimate procured from the appropriate public office o▇▇▇▇e or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇bill, statement statement, or estimate or into the validity of any tax assessmentassess▇▇▇▇, sale, forfeiture, tax lien lien, or title or claim. The Secured Party, Party in performing any act hereunder, hereunder shall be the sole judge of whether the Debtor is required to perform the same under the terms of this Agreement. .
(n) Each of the Accounts, Chattel Paper, Instruments and Documents constituting Collateral is genuine and enforceable in accordance with its terms against the party obligated to pay thereunder (individually, an "Account Debtor" and collectively, the "Account Debtors").
(o) The amount represented by Debtor to Secured Party from time to time as owing by each of its Account Debtors to the best of Debtor's knowledge is hereby authorized to charge any depository the correct amount actually and unconditionally owing by such Account Debtor or other account of the Debtor maintained Account Debtors, save and except for normal cash discounts where applicable and a reasonable reserve for bad debts.
(p) Unless compliance with the following covenants is waived by Secured Party for in writing or unless non-compliance with any such covenants is otherwise consented to by Secured Party in writing, Debtor covenants and agrees that:
(i) it shall maintain its corporate existence in good standing as a Delaware corporation and shall ensure that it has, at all times, full power and corporate authority to carry on the amount activities conducted by it and to perform its obligations under this Agreement;
(ii) it shall keep the Collateral in good working order and condition, normal wear and tear excepted;
(iii) it shall not use the Collateral in violation of such sums and amounts so expended.this Agreement or any other agreement relating to its Collateral or any policy insuring its Collateral or any applicable statute, law, by-law, rule, regulation, court order or ordinance;
(iv) it shall promptly notify
Appears in 1 contract
Sources: Security Agreement (Adsero Corp)
Covenants, Agreements, Representations and Warranties. The Debtor Pledgor hereby ------------------------------------------------------------ covenants and agrees with, and represents and warrants to, the Secured Party that:
(a) The Debtor is the sole Pledgor has and lawful owner of will have at all times good title to the Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute grant a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result security interest in the creation or imposition Collateral to Secured Party in the manner provided herein, free and clear of any lien lien, security interest or other charge or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested as permitted by the Secured Party to maintain the lien Party. This Agreement creates a legal, valid and binding security interest in favor of the Secured Party in the Collateral at securing the Obligations. Possession by Secured Party of all times fully perfected certificates, instruments and cash constituting Collateral from time to time and/or the filing of the financing statements delivered prior hereto and/or concurrently herewith by Pledgor to Secured Party will perfect and establish the first priority of Secured Party's security interest hereunder in full force and effectthe Collateral.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(db) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies levies, and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of involuntary other than as permitted by the Secured Party therein and (ii) the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Party. The Debtor Pledgor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(ec) The Debtor Pledgor's office and the office where the records concerning the Collateral are kept is located at its address set forth on the signature page hereof. Except as specified elsewhere herein, all Collateral shall be kept at such address, and Secured Party shall be entitled to maintain possession of the securities representing the Collateral.
(d) Pledgor shall promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor Pledgor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the CollateralCollateral and preclude interference with the operation of Pledgor's business in the ordinary course, and the Debtor Pledgor shall have established adequate reserves therefor.
(fe) Subject to Section 4 hereofPledgor shall not, without the Secured Party’s 's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(f) If any Collateral is in the possession or control of Pledgor's agents or processors and the Secured Party so requests, Pledgor agrees to notify such agents or processors in writing of the Secured Party's security interest therein and instruct them to hold all such Collateral for the Secured Party's account and subject to the Secured Party's instructions.
(g) Pledgor agrees from time to time to deliver to the Secured Party upon written notice such evidence of the existence, identity, and location of its Collateral and of its availability as collateral security pursuant hereto as the Secured Party may request. The Debtor Secured Party shall have the right to verify all or any part of the Collateral in any reasonable manner, and through any medium, which the Secured Party considers appropriate (including, without limitation, the verification of Collateral by use of a fictitious name), and Pledgor agrees to furnish all assistance and information, and perform any acts, which the Secured Party may require in connection therewith.
(h) Pledgor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party such further agreements, assignments, instruments instruments, and documents and to do all such other things as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and including such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor Pledgor hereby agrees that a carbon, photographic photographic, or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor Pledgor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois Texas becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor Pledgor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect protect, and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction. Pledgor agrees to m▇▇▇ its books and records to reflect the lien and security interest of the Secured Party in the Collateral.
(hi) On failure of the Debtor Pledgor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such reasonable sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, Pledgor upon demand and shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial ratehereunder. No such performance of any covenant or agreement by the Secured Party on behalf of the DebtorPledgor, and no such advancement or expenditure therefor, shall relieve the Debtor Pledgor of any default under the terms of this Agreement or in any way obligate the/the Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and the such Debtor has no other residences executive offices or places of business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (exclusive of vacation homescollectively for each Debtor, the “Permitted Collateral Locations”). If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect unless specifically agreed to any new location, in writing by the Agent and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effecteffect (at which time Schedule A hereof shall be deemed amended to include each such additional Permitted Collateral Location, and the Debtors agree to furnish to the Agent from time to time upon its reasonable request an updated Schedule A listing all such Permitted Collateral Locations).
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization, its legal name or transact business under any other trade name without first giving 30 days’ (or such lesser period as may be agreed to by the Agent) prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens Liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest Lien of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due agrees it will not use, manufacture, sell or distribute any Collateral in violation in any material respect of any statute, ordinance or other governmental requirement. Each Debtor will perform in all taxes, assessments and governmental charges and levies upon material respects its obligations under any contract or against the Debtor or any other agreement constituting part of the Collateral, in each case before the same become delinquent it being understood and before penalties accrue thereon, unless and to the extent agreed that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall Secured Creditors have established adequate reserves thereforno responsibility to perform such obligations.
(f) Subject to the terms and conditions of Section 4 hereof8.4 of the Credit Agreement, without each Debtor shall insure and keep insured with good and responsible insurance companies, all insurable Collateral owned by it which is of a character usually insured by Persons similarly situated and operating like Collateral against loss or damage from such hazards and risks, and in such amounts, as are insured by Persons similarly situated and operating like Collateral. All premiums on such insurance shall be paid by the Secured Party’s prior written consentDebtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall notpromptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, nor damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall it permit be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Intermediary toCollateral so lost, investdamaged or destroyed, purchaseexcept to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, sellsuch Debtor shall pay over such proceeds of insurance to the Agent pursuant to Section 2.8(b)(ii) of the Credit Agreement. Each Debtor hereby authorizes the Agent, exchangeat the Agent’s option, redeemto adjust, reinvestcompromise, assignand settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, or otherwise dispose and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent after the occurrence and during the continuation of any Event of Default. All insurance proceeds shall be subject to the lien and security interest thereinof the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(g) Pursuant to Section 8.6 of the Credit Agreement, each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(h) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify.
(i) Each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(j) Each Debtor will comply with the terms and conditions of any and all leases, easements, right-of-way agreements, and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon, except to the extent failure to comply would not reasonably be expected to have a Material Adverse Effect.
(k) Schedule F attached hereto contains a true, complete and current listing of all Commercial Tort Claims in excess of $1,000,000 held by the Debtors as of the date hereof, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to execute and deliverdeliver to the Agent an agreement in the form attached hereto as Schedule F, and or in such other form reasonably acceptable to the Agent, promptly upon becoming aware of any Commercial Tort Claim in excess of $1,000,000 of such Debtor arising after the date hereof (provided any Debtor’s failure to do so shall cause not impair the Intermediary Agent’s security interest therein).
(l) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, and (ii) such control agreements with respect to Deposit Accounts, Investment Property, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as the Agent may from time to time reasonably require in order to comply accordance with the UCCCredit Agreement. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided so long as no Default exists, the Debtors shall not be required to reimburse the Agent for such lien searches ordered more than once during each calendar year. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the each Debtor agrees to execute and deliver all such instruments agreements, assignments, instruments, and documents and to do all such other things as the Secured Party in its sole discretion Agent deems reasonably necessary or appropriate to preserve, protect protect, and enforce the security interest of the Agent under the law of such other jurisdiction. Each Debtor agrees to ▇▇▇▇ its books and records to reflect the lien and security interest of the Secured Party under Agent in the law of such other jurisdictionCollateral.
(hm) On failure of the any Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or Debtors upon demand, shall constitute additional Secured Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days for the actual number of days elapsed) determined by adding 22.0% per annum to the rate per annum Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin from time to time in effect for Base Rate Loans under the Revolving Facility, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Base Rate to be effective on the date of such change in said prime commercial rateBase Rate (such rate per annum as so determined being hereinafter referred to as the “Default Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured PartyAgent, in making any payment hereby authorized, may do so according to any b▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured PartyAgent, 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. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the any Secured Party Creditor for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Envestnet, Inc.)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the state of its organization. No Debtor shall change its state of organization without the Agent’s prior written consent. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute (x) a default under any provision of any Debtor’s organizational documents or, (y) a default under any provision of law or any judgment, injunction, order or decree binding upon the on any Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture indenture, or agreement of or affecting any Debtor or any of its property which, in the Debtor case of any default described in this clause (y), is reasonably likely to have a Material Adverse Effect, or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (collectively for each Debtor, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of such Debtor’s business is in transit between Permitted Collateral Locations, (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time, and (iii) Inventory temporarily located in warehouses not owned by the Debtor as described in and pursuant to the conditions of Section 7(d) hereof. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, state of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Credit Agreement. The Each Debtor shall warrant and defend the Collateral against any material claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before accordance with the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any provisions of the Collateral, and the Debtor shall have established adequate reserves thereforCredit Agreement.
(f) Each Debtor agrees it shall not waste or destroy the Collateral or any part thereof and shall not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(d), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) Each Debtor shall insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefor, as the Agent may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged, or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) written application for such release is received by the Agent from the relevant Debtor within 30 days of the receipt of such proceeds, and (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged, or destroyed has been or will be replaced or restored to its condition immediately prior to the loss, destruction, or other event giving rise to the payment of such insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $100,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may reasonably designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(j) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(k) Upon the Agent’s request, each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(l) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(m) Schedule C (or, in the case of trade names, Schedule B) attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark applications, tradenames, patents, patent rights or licenses, patent applications and other intellectual property rights owned by each of the Debtors that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C to reflect such additional rights (provided any Debtor’s failure to do so shall not impair the Agent’s security interest therein). Each Debtor owns or possesses rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and the Debtors are not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(n) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) executing such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbonUCC and any other applicable law, photographic or other reproduction of this Agreement or any (ii) executing such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any patent, trademark, and all financing statements covering the Collateral or any part thereof copyright agreements as the Secured Party Agent may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate reasonably require to comply with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf filing requirements of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.United St
Appears in 1 contract
Sources: Security Agreement (FTD Inc)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the state of its organization. No Debtor shall change its state of organization without the Agent's prior written consent. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute (x) a default under any provision of any Debtor's organizational documents or, (y) a default under any provision of law or any judgment, injunction, order or decree binding upon the on any Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture indenture, or agreement of or affecting any Debtor or any of its property which, in the Debtor case of any default described in this clause (y), is reasonably likely to have a Material Adverse Effect, or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor's name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name (collectively for each Debtor, the "Permitted Collateral Locations"), except for (i) Collateral which in the ordinary course of such Debtor's business is in transit between Permitted Collateral Locations, (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time, and (iii) Inventory temporarily located in warehouses not owned by the Debtor as described in and pursuant to the conditions of Section 7(d) hereof. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ ' prior written notice of the Debtor’s 's intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s 's legal name is name, state of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its legal name or transact business under any other trade name without first giving 30 days’ ' prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Credit Agreement. The Each Debtor shall warrant and defend the Collateral against any material claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before accordance with the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any provisions of the Collateral, and the Debtor shall have established adequate reserves thereforCredit Agreement.
(f) Each Debtor agrees it shall not waste or destroy the Collateral or any part thereof and shall not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(d), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) Each Debtor shall insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefor, as the Agent may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged, or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) written application for such release is received by the Agent from the relevant Debtor within 30 days of the receipt of such proceeds, and (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged, or destroyed has been or will be replaced or restored to its condition immediately prior to the loss, destruction, or other event giving rise to the payment of such insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $100,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS' EXPENSE TO PROTECT THE AGENT'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR'S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may reasonably designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(j) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon the request of the 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 Creditors and their respective representatives to examine and inspect any of the Collateral then in such -7- 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(k) Upon the Agent's request, each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(l) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(m) Schedule C (or, in the case of trade names, Schedule B) attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark applications, tradenames, patents, patent rights or licenses, patent applications and other intellectual property rights owned by each of the Debtors that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C to reflect such additional rights (provided any Debtor's failure to do so shall not impair the Agent's security interest therein). Each Debtor owns or possesses rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and the Debtors are not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(n) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) executing such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbonUCC and any other applicable law, photographic or other reproduction of this Agreement or any (ii) executing such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any patent, trademark, and all financing statements covering the Collateral or any part thereof copyright agreements as the Secured Party Agent may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate reasonably require to comply with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf filing requirements of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.Unite
Appears in 1 contract
Sources: Security Agreement (Ios Brands Corp)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents and warrants to, the Secured Party that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order order, or decree binding upon the any Debtor or any provision of the any Debtor’s trust agreement organizational documents (e.g., charter, articles or certificate of incorporation and by-laws, articles or certificate of formation and limited liability company operating agreement, partnership agreement, or other similar organizational documents) or any covenant, indenture indenture, or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (collectively for each Debtor, as such locations may be amended or supplemented from time to time with written notice to the Secured Party as provided below, the “Permitted Collateral Locations”) other than (i) Collateral that is temporarily located at job sites in the ordinary course of business and (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Secured Party shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule A or permit the Collateral to be located at a location other than those specified under Columns 2 or 3 on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the such Debtor’s intent to do soso (at which time Schedule A will be deemed amended or supplemented with such additional or modified locations); provided that the each Debtor shall at all times maintain its principal residence chief executive office and, unless otherwise specifically agreed to in writing by the Secured Party, Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Secured Party’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights as otherwise permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Credit Agreement. The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Each Debtor shall promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the such Debtor or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the CollateralCollateral and preclude interference with the operation of such Debtor’s business in the ordinary course, and the such Debtor shall have established adequate reserves therefor.
(f) No Debtor shall use, manufacture, sell, or distribute any Collateral in violation of any statute, ordinance, or other governmental requirement. No Debtor shall waste or destroy the Collateral or any part thereof or be negligent in the care or use of any Collateral. Each Debtor shall perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Party has no responsibility to perform such obligations.
(g) Subject to Sections 5(b), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), no Debtor shall, without the Secured Party’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) The Debtor agrees to execute Debtors shall at all times insure the Collateral consisting of tangible personal property against such risks and deliverhazards as other persons similarly situated insure against, and shall cause the Intermediary to execute including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things hazards as the Secured Party may reasonably deem necessary or appropriate specify. All insurance required hereby shall be maintained in amounts and under policies and with insurers reasonably acceptable to assure the Secured Party, and all such policies shall contain lender loss payable clauses naming the Secured Party as loss payee as its lien and security interest hereundermay appear (and, includingif the Secured Party requests, without limitation, naming the Secured Party as an additional insured therein) in a Securities Account Control Agreement executed form reasonably acceptable to the Secured Party. All premiums on such insurance shall be paid by the Intermediary substantially in Debtors. Certificates of insurance evidencing compliance with the form attached hereto as Schedule B or foregoing and, at the Secured Party’s request, the policies of such other securities account control agreement executed insurance shall be delivered by the Intermediary in form Debtors to the Secured Party. All insurance required hereby shall provide that any loss shall be payable to the Secured Party notwithstanding any act or negligence of any Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and substance the Secured Party of written notice thereof, and shall be reasonably satisfactory to the Secured Party (such Securities Account Control Agreementin all other respects. In case of any material loss, as damage to or destruction of the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement Collateral or any such financing statement is sufficient for filing as a financing statement by part thereof, the Secured Party without relevant Debtor shall promptly give written notice thereof to the Secured Party generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, shall promptly repair or replace the Collateral so lost, damaged, or destroyed, except to the extent such Collateral, prior to its loss, damage, or destruction, had become uneconomical, obsolete, or worn out and is not necessary for or of importance to the proper conduct of such Debtor’s business in the ordinary course. In the event any Debtor wherever shall receive any proceeds of such insurance, such Debtor shall immediately pay over such proceeds to the Secured Party in its sole discretion desires to file the sameParty. The Each Debtor hereby authorizes the Secured Party, at the Secured Party’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time during the existence of any Event of Default or any other event or condition which with the lapse of time or the giving of notice, or both, would constitute an Event of Default, and each Debtor does hereby irrevocably constitute the Secured Party, and each of its nominees, officers, agents, attorneys, and any other person whom the Secured Party may designate, as such Debtor’s attorneys-in-fact, with full power and authority to file effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and all financing statements to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Secured Party elects to adjust, compromise, or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Secured Party (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $250,000. Net insurance proceeds received by the Secured Party under the provisions hereof or under any policy of insurance covering the Collateral or any part thereof as shall be applied to the reduction of the Secured Obligations (whether or not then due); provided, however, that the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged, or destroyed if, but only if, (i) at the time of release no Event of Default, or any part thereofother event or condition which with the lapse of time or the giving of notice, or to any both, would constitute an Event of the ObligationsDefault, the Debtor agrees to execute and deliver all exists, (ii) written application for such instruments and documents and to do all such other things as release is received by the Secured Party in from such Debtor within 30 days of receipt of such proceeds, and (iii) the Secured Party has received evidence reasonably satisfactory to it that the Collateral lost, damaged or destroyed has been or will be replaced or restored to its sole discretion deems necessary condition immediately prior to the loss, destruction or appropriate other event giving rise to preserve, protect and enforce the payment of such insurance proceeds. All insurance proceeds shall be subject to the lien and security interest of the Secured Party under the law of such other jurisdictionhereunder. UNLESS THE DEBTORS PROVIDE THE SECURED PARTY WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE SECURED PARTY MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE SECURED PARTY’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT THE DEBTORS’ INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE SECURED PARTY MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST ANY DEBTOR IN CONNECTION WITH THE COLLATERAL. THE RELEVANT DEBTOR MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE SECURED PARTY, BUT ONLY AFTER PROVIDING THE SECURED PARTY WITH EVIDENCE THAT SUCH DEBTOR HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE SECURED PARTY PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE SECURED PARTY MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(hi) On failure of the Each Debtor to perform any of the covenants and agreements herein contained, shall at all times allow the Secured Party mayand its representatives free access to and right of inspection of the Collateral; provided that, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that believes in good faith an Event of Default, or any other event or condition which with the lapse of time or the giving of notice, or both, would constitute an Event of Default, exists, any such access or inspection shall only be required during the relevant Debtor’s normal business hours.
(j) If any Collateral is in the possession or control of any of any Debtor’s agents or processors and the Secured Party so requests, such Debtor agrees to notify such agents or processors in writing of the Secured Party’s security interest therein and instruct them to hold all such Collateral for the Secured Party’s account and subject to the Secured Party’s instructions. Each Debtor shall, upon the request of the Secured Party, authorize and instruct all bailees and 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 Party and its 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 Party or its representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, the relevant Debtor shall, at the Secured Party’s request, cause each party having any right, title or interest therein will be harmed in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral and allows the removal of such Collateral by the giving Secured Party and is otherwise in form and substance reasonably acceptable to the Secured Party; provided, however, that no such agreement need be obtained with respect to any one location wherein the value of the Collateral as to which such noticeagreement has not been obtained aggregates less than $250,000 at any one time.
(k) Each Debtor agrees from time to time to deliver to the Secured Party such evidence of the existence, perform 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 same equivalent, and original shipping or delivery receipts for all merchandise and other goods sold or leased or services rendered, together with such Debtor’s warranty of the genuineness thereof, and reports stating the book value of Inventory and Equipment by major category and location), in so doing may expend such sums each case as the Secured Party may reasonably deem advisable request. The Secured Party shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the performance thereof, Secured Party considers appropriate (including, without limitation, the payment verification of any taxes, liens and encumbrances, expenditures made in defending against any adverse claimsCollateral by use of a fictitious name), and each Debtor agrees to furnish all other expenditures assistance and information, and perform any acts, which the Secured Party may be compelled to make by operation of law or which reasonably require in connection therewith. Each Debtor shall promptly notify the Secured Party may make by agreement of any Collateral that such Debtor has determined to have been rendered obsolete, stating the prior book value of such Collateral, its type and location.
(l) Each Debtor shall comply in all material respects with the terms and conditions of all leases, easements, right-of-way agreements, and other similar agreements binding upon such Debtor or otherwise for affecting the protection Collateral or any part thereof, and all orders, ordinances, laws, and statutes of the security hereof. All such sums and amounts so expended shall be repayable by the Debtor immediately without notice any city, state, or demandother governmental entity, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% department, or agency having jurisdiction with respect to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.premises
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization, is the sole and lawful owner of the Collateral, Collateral granted by it hereunder and has full right, the power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein Each Debtor's Federal tax identification number is set forth, will not (i) contravene or constitute a default forth under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance its name under Column 1 on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.Schedule A.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor's name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name (collectively for each Debtor, the "Permitted Collateral Locations"), except as to any Collateral sold or otherwise disposed of in accordance with this Agreement and Section 8.10 of the Credit Agreement. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s 's intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the "Permitted Liens"). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(ed) The Each Debtor shall will promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any Lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(f) Subject to Sections 4(d), 5(a), 6(b), 6(c), and 7(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Secured Creditors generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, such Debtor will immediately pay over such proceeds to the Agent; provided that, in the absence of any Default or Event of Default such Debtors shall be entitled to retain such insurance proceeds to the extent such proceeds are used for such repair or replacement in accordance with Section 1.9(b) of the Credit Agreement. Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $500,000. Net insurance proceeds received by the Agent under the provisions hereof or under any policy or policies of insurance covering the Collateral or any part thereof pursuant to the terms hereof shall be applied to the reduction of, or otherwise held as security for, the Obligations (whether or not then due); provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists hereunder, (ii) written application for such release is received from such Debtor within 30 days of receipt of, or in the event received by the Agent notice of Agent's receipt of, such proceeds and (iii) the Agent has received evidence reasonably satisfactory to it that the Collateral lost, damaged or destroyed has been or will be replaced or restored in accordance with Section 1.9(b) of the Credit Agreement. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder.
(h) Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allowing the removal of such Collateral by the Agent or its agents or representatives and otherwise in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent's request, each Debtor agrees from time to time to deliver to the any Secured Creditor 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 such Secured Creditor may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(k) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(l) No Debtor has invoiced Receivables or otherwise transacted business, and does not invoice Receivables or otherwise transact business, under any trade names other than its name set forth on its signature page to this Agreement or as otherwise set forth on Schedule B hereto. Each Debtor agrees it will not change its name or transact business under any other trade name, in each case without first giving the Agent at least 30 days prior written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) executing such financing statements, and amendments thereof statement or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCC, and (ii) executing such patent, trademark, and copyright agreements as the 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. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without prior notice thereof to the such Debtor wherever the Secured Party in its sole discretion desires Agent deems necessary or desirable to file perfect or protect the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requiresecurity interest granted hereby. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hn) On failure of the a Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem 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 the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 such Debtor immediately without notice or upon demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days, for the actual number of days elapsed) determined by adding 2% to the rate per annum Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin for Revolving Loans, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Base Rate to be effective on the date of such change in said prime commercial rateBase Rate (such rate per annum as so determined being hereinafter referred to as the "Default Rate"). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, Agent in making any payment hereby authorized, authorized may do so according to any b▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, Agent in performing any act hereunder, hereunder shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the any Secured Party Creditor for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Sycamore Park Convalescent Hospital)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Agent and each Secured Party Creditor that:
(a) The Each Debtor is duly organized and validly existing in good standing under the sole and lawful owner laws of the state of its organization. No Debtor shall change its state of organization without first providing the Agent 15 days prior written notice. Each Debtor’s chief executive office and principal place of business is at the location listed opposite such Debtor’s name under column 2 on Schedule A attached hereto; and such Debtor has no other executive offices or places of business (other than operating job sites in the ordinary course of such Debtor’s business) other than those listed opposite such Debtor’s name under column 3 on Schedule A attached hereto. Each Debtor’s organizational identification number is set forth under its name in column 1 on Schedule A attached hereto. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed opposite such Debtor’s name under column 4 on Schedule A attached hereto opposite such Debtors’ name, or is or shall be located at such Debtor’s then operating job sites in the ordinary course of its business, or is or shall be in transit to or between any of the foregoing locations (collectively, the “Permitted Collateral Locations”) in the ordinary course of business. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest in such Collateral. No Debtor shall move its chief executive office or maintain a place of business at a location other than those specified under columns 2 and/or 3 on Schedule A attached hereto other than temporarily in the ordinary course of business or permit any Collateral in excess of $1,000,000 to be located at a location other than a Permitted Collateral Location other than temporarily in the ordinary course of business or at a job site, in each case without first providing the Agent 15 days prior written notice of such Debtor’s intent to do so; provided, however, that each Debtor shall at all times maintain its chief executive office and places of business in the United States of America and, with respect to any new chief executive office or place of business or location of Collateral, such Debtor shall have taken all action reasonably requested by the Agent or any Secured Creditor to maintain the lien and has full right, power and authority to enter into this Agreement and to perform each and all security interest of the matters Agent in the Collateral at all times fully perfected and things herein provided forin full force and effect. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g. certificate of incorporation, articles of incorporation, by‑laws, certificate of formation, limited liability company operating agreement or partnership agreement, as applicable) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent in the Collateral hereunder. Each Debtor’s organizational registration number (if any) is set forth on Schedule A attached hereto.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) other liens permitted by the rights of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Encumbrances”). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(fc) Subject to Section 4 Sections 4(a), 6(c) and 7(a) hereof, no Debtor shall without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any interest therein, except that (i) until an Event of Default has occurred and is continuing and thereafter until notified by the Agent that it intends to foreclose or otherwise realize upon such Collateral, each Debtor may use and lease its Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Section 7.13 of the Credit Agreement), and (ii) until an Event of Default has occurred and is continuing, the Debtor may sell or otherwise dispose of Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Sections 7.13 and 7.14 of the Credit Agreement), and may grant liens on Collateral to the extent permitted by Sections 4.1 and/or 7.11 of the Credit Agreement, provided that a sale, lease or other disposition in the ordinary course of business shall not under any circumstance include a transfer, sale or lease in satisfaction, partial or complete, of a debt owing by such Debtor unless the debt so satisfied is secured with a lien on or ownership right in the goods in question which is prior to the security interest of the Agent therein and is a Permitted Encumbrance.
(d) Each Debtor shall at all times insure the Collateral consisting of tangible personal property against such risks and hazards as other persons or entities similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Agent may reasonably specify, in amounts and under policies containing lenders loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Secured Creditors as additional insureds therein) and by insurers reasonably acceptable to the Agent, it being agreed that the foregoing shall not preclude any Debtor from directly or indirectly self insuring risks as and to the extent prudent and customary for companies similarly situated and then to the extent permitted by the Credit Agreement. All premiums on such insurance shall be paid by the Debtors and, upon the Agent’s request, the policies of such insurance (or certificates therefor) shall be delivered by the Debtors to the Agent. All insurance required hereby shall provide to the extent commercially reasonably available that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. Each Debtor may retain any proceeds of such insurance arising out of the loss, damage or destruction of the Collateral owned or leased by such Debtor so long as no Event of Default shall have occurred and be continuing or shall arise and be continuing after giving effect to such loss, damage or destruction. After the occurrence and during the continuance of any Event of Default, each Debtor will immediately pay over such proceeds of insurance to the Agent which shall thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefore, as the Agent may then determine. All insurance proceeds shall be subject to the lien and security interest of the Agent in the Collateral. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuance of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, in such case as such Debtor’s attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance.
(e) Each Debtor shall, at all reasonable times upon reasonable prior notice, allow the Agent, any Secured Creditor, and their respective representatives free access to and right of inspection of the Collateral during such Debtor’s normal business hours. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right to verify all or any interest thereinpart of the Collateral in any manner, and through any medium, which the Agent considers appropriate, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(f) Each Debtor’s legal name and state of organization is correctly set forth in Schedule A attached hereto. No Debtor has transacted business at any time during the immediately preceding five‑year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. No Debtor shall change its legal name or transact business under any other trade name without first giving 15 days’ prior written notice of its intent to do so to the Agent.
(g) Schedule C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights and licenses, patent applications and other intellectual property rights that are owned by the Debtors and are registered with any governmental authority. The relevant Debtor shall promptly notify the Agent in writing of any such additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C attached hereto to reflect such additional rights (provided such Debtor’s failure to do so shall not impair the Agent’s security interest therein). The Debtors own or possess rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights and licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct their business. To the best of the Debtors’ knowledge, no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Debtor is liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(h) Schedule E attached hereto contains a true, complete and current listing of all Commercial Tort Claims held or maintained by the Debtors as of the date hereof for an amount equal to or greater than $10,000,000, each described by reference to the specific incident giving rise to the applicable claim. Each Debtor agrees to execute and deliverdeliver to the Agent a supplement to this Agreement in the form attached hereto as Schedule F, and shall cause or in such other form reasonably acceptable to the Intermediary Agent, promptly upon becoming aware of any other Commercial Tort Claim in an amount equal to or greater than $10,000,000 held or maintained by any Debtor arising after the date hereof.
(i) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunderof the Agent in the Collateral granted hereby, including, without limitation, a Securities Account Control Agreement executed by (i) the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form execution and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and delivery of such financing statements, statements and amendments thereof and supplements thereto or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) the execution and delivery of such patent, trademark and copyright assignment agreements as the 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) the execution and delivery of and the use of commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries and letter of credit issuers to execute and deliver such control agreements with respect to all Letter-of-Credit Rights and electronic Chattel Paper as the Agent may from time to time reasonably require in order to comply accordance with the UCCterms hereof. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided, however, that prior to the occurrence of any Event of Default the Debtors shall not have any obligation to reimburse the Agent for the reasonable costs and expenses of more than one lien search during any calendar year. In the event for any reason the law of any jurisdiction other than Illinois New York becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hj) On Upon the occurrence and during the continuance of any Event of Default, on failure of the any Debtor to perform any of the its covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, option perform the same and in so doing may expend such sums as the Secured Party Agent may reasonably deem advisable in the performance thereof, including, without limitation, the (i) payment of any insurance premiums, (ii) payment of any taxes, liens and encumbrances, (iii) expenditures made in defending against any adverse claims, and (iv) all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereofCollateral. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding equal to the sum of 2% to plus the rate per annum otherwise applicable to Domestic Rate Loans under the Revolving Facility in effect from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in (such rate per annum as so determined by reason of a change in such prime commercial rate being hereinafter referred to be effective on as the date of such change in said prime commercial rate“Reimbursement Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the any Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/the Agent or any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the Secured Party Agent for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Emcor Group Inc)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Agent and each Secured Party Creditor that:
(a) The Each Debtor is duly organized and validly existing in good standing under the sole and lawful owner laws of the state of its organization. No Debtor shall change its state of organization without first providing the Agent 15 days prior written notice. Each Debtor’s chief executive office and principal place of business is at the location listed opposite such Debtor’s name under column 2 on Schedule A attached hereto; and such Debtor has no other executive offices or places of business (other than operating job sites in the ordinary course of such Debtor’s business) other than those listed opposite such Debtor’s name under column 3 on Schedule A attached hereto. Each Debtor’s organizational identification number is set forth under its name in column 1 on Schedule A attached hereto. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed opposite such Debtor’s name under column 4 on Schedule A attached hereto opposite such Debtors’ name, or is or shall be located at such Debtor’s then operating job sites in the ordinary course of its business, or is or shall be in transit to or between any of the foregoing locations (collectively, the “Permitted Collateral Locations”) in the ordinary course of business. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest in such Collateral. No Debtor shall move its chief executive office or maintain a place of business at a location other than those specified under columns 2 and/or 3 on Schedule A attached hereto other than temporarily in the ordinary course of business or permit any Collateral in excess of $50,000,000 to be located at a location other than a Permitted Collateral Location other than temporarily in the ordinary course of business or at a job site, in each case without first providing the Agent 15 days prior written notice of such Debtor’s intent to do so; provided, however, that each Debtor shall at all times maintain its chief executive office and places of business in the United States of America and, with respect to any new chief executive office or place of business or location of Collateral, such Debtor shall have taken all action reasonably requested by the Agent or any Secured Creditor to maintain the lien and has full right, power and authority to enter into this Agreement and to perform each and all security interest of the matters Agent in the Collateral at all times fully perfected and things herein provided forin full force and effect. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g. certificate of incorporation, articles of incorporation, by‑laws, certificate of formation, limited liability company operating agreement or partnership agreement, as applicable) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent in the Collateral hereunder. Each Debtor’s organizational registration number (if any) is set forth on Schedule A attached hereto.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) other liens permitted by the rights of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Encumbrances”). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(fc) Subject to Section 4 Sections 4(a), 6(c) and 7(a) hereof, no Debtor shall without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any interest therein, except that (i) until an Event of Default has occurred and is continuing and thereafter until notified by the Agent that it intends to foreclose or otherwise realize upon such Collateral, each Debtor may use and lease its Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Section 7.13 of the Credit Agreement), and (ii) until an Event of Default has occurred and is continuing, the Debtor may sell or otherwise dispose of Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Sections 7.13 and 7.14 of the Credit Agreement), and may grant liens on Collateral to the extent permitted by Sections 4.1 and/or 7.11 of the Credit Agreement, provided that a sale, lease or other disposition in the ordinary course of business shall not under any circumstance include a transfer, sale or lease in satisfaction, partial or complete, of a debt owing by such Debtor unless the debt so satisfied is secured with a lien on or ownership right in the goods in question which is prior to the security interest of the Agent therein and is a Permitted Encumbrance.
(d) Each Debtor shall at all times insure the Collateral consisting of tangible personal property against such risks and hazards as other persons or entities similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Agent may reasonably specify, in amounts and under policies containing lenders loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Secured Creditors as additional insureds therein) and by insurers reasonably acceptable to the Agent, it being agreed that the foregoing shall not preclude any Debtor from directly or indirectly self insuring risks as and to the extent prudent and customary for companies similarly situated and then to the extent permitted by the Credit Agreement. All premiums on such insurance shall be paid by the Debtors and, upon the Agent’s request, the policies of such insurance (or certificates therefor) shall be delivered by the Debtors to the Agent. All insurance required hereby shall provide to the extent commercially reasonably available that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. Each Debtor may retain any proceeds of such insurance arising out of the loss, damage or destruction of the Collateral owned or leased by such Debtor so long as no Event of Default shall have occurred and be continuing or shall arise and be continuing after giving effect to such loss, damage or destruction. After the occurrence and during the continuance of any Event of Default, each Debtor will immediately pay over such proceeds of insurance to the Agent which shall thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefore, as the Agent may then determine. All insurance proceeds shall be subject to the lien and security interest of the Agent in the Collateral. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuance of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, in such case as such Debtor’s attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance.
(e) Each Debtor shall, at all reasonable times upon reasonable prior notice, allow the Agent, any Secured Creditor, and their respective representatives free access to and right of inspection of the Collateral during such Debtor’s normal business hours. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right to verify all or any interest thereinpart of the Collateral in any manner, and through any medium, which the Agent considers appropriate, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(f) Each Debtor’s legal name and state of organization is correctly set forth in Schedule A attached hereto. No Debtor has transacted business at any time during the immediately preceding five‑year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. No Debtor shall change its legal name or transact business under any other trade name without first giving 15 days’ prior written notice of its intent to do so to the Agent.
(g) Schedule C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights and licenses, patent applications and other intellectual property rights that are owned by the Debtors and are registered with any governmental authority. The relevant Debtor shall promptly notify the Agent in writing of any such additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C attached hereto to reflect such additional rights (provided such Debtor’s failure to do so shall not impair the Agent’s security interest therein). The Debtors own or possess rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights and licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct their business. To the best of the Debtors’ knowledge, no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Debtor is liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(h) Schedule E attached hereto contains a true, complete and current listing of all Commercial Tort Claims held or maintained by the Debtors as of the date hereof for an amount equal to or greater than $25,000,000, each described by reference to the specific incident giving rise to the applicable claim. Each Debtor agrees to execute and deliverdeliver to the Agent a supplement to this Agreement in the form attached hereto as Schedule F, and shall cause or in such other form reasonably acceptable to the Intermediary Agent, promptly upon becoming aware of any other Commercial Tort Claim in an amount equal to or greater than $25,000,000 held or maintained by any Debtor arising after the date hereof.
(i) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunderof the Agent in the Collateral granted hereby, including, without limitation, a Securities Account Control Agreement executed by (i) the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form execution and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and delivery of such financing statements, statements and amendments thereof and supplements thereto or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) the execution and delivery of such patent, trademark and copyright assignment agreements as the 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) the execution and delivery of and the use of commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries and letter of credit issuers to execute and deliver such control agreements with respect to all Letter-of-Credit Rights and electronic Chattel Paper as the Agent may from time to time reasonably require in order to comply accordance with the UCCterms hereof. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided, however, that prior to the occurrence of any Event of Default the Debtors shall not have any obligation to reimburse the Agent for the reasonable costs and expenses of more than one lien search during any calendar year. In the event for any reason the law of any jurisdiction other than Illinois New York becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hj) On Upon the occurrence and during the continuance of any Event of Default, on failure of the any Debtor to perform any of the its covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, option perform the same and in so doing may expend such sums as the Secured Party Agent may reasonably deem advisable in the performance thereof, including, without limitation, the (i) payment of any insurance premiums, (ii) payment of any taxes, liens and encumbrances, (iii) expenditures made in defending against any adverse claims, and (iv) all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereofCollateral. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding equal to the sum of 2% to plus the rate per annum otherwise applicable to Domestic Rate Loans under the Revolving Facility in effect from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in (such rate per annum as so determined by reason of a change in such prime commercial rate being hereinafter referred to be effective on as the date of such change in said prime commercial rate“Reimbursement Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the any Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/the Agent or any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the Secured Party Agent for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Borrower hereby covenants and agrees with, and represents and warrants to, the Secured Party Lender that:
(a) The Debtor Borrower is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Borrower is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor Borrower or any provision of the DebtorBorrower’s trust agreement organizational documents (e.g., charter, articles or certificate of incorporation and bylaws or similar organizational documents) or any covenant, indenture or agreement of or affecting the Debtor Borrower or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor Borrower except for the lien and security interest granted to the Secured Party Lender hereunder.
(b) The DebtorBorrower’s principal residence chief executive office is located at 1▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; , and the Debtor Borrower has no other residences executive offices or places of business other than those listed under on Schedule A attached hereto. The Collateral is and shall remain in Borrower’s possession or control at the locations listed on Schedule A attached hereto (exclusive of vacation homesthe “Permitted Collateral Locations”). The Debtor If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Lender shall nevertheless have and retain a lien on and security interest therein. Borrower shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Lender at least 30 days’ days prior written notice of the DebtorBorrower’s intent to do so; provided that the Debtor Borrower shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect unless specifically agreed to any new location, in writing by the Debtor Lender and Borrower shall have taken all action reasonably requested by the Secured Party Lender to maintain the lien and security interest of the Secured Party Lender in the Collateral at all times fully perfected and in full force and effect.
(c) The DebtorBorrower’s legal name is name, jurisdiction of organization and organizational number are correctly set forth in the first paragraph on Schedule A of this Agreement. The Debtor Borrower has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names set forth on Schedule B attached hereto. The Debtor Borrower shall not change its jurisdiction of organization without the Lender’s prior written consent. Borrower shall not change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyLender.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Lender therein and (ii) other Permitted Liens. To the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor extent it is commercially reasonable, Borrower shall warrant and defend the Collateral against any material claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured PartyLender.
(e) The Debtor shall Borrower will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the Debtor Borrower shall have established adequate reserves therefor.
(f) Subject Borrower agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Borrower agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. To the extent it is commercially reasonable, Borrower will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Lender has no responsibility to Section 4 hereofperform such obligations.
(g) Borrower agrees it will not, without the Secured PartyLender’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein, except for (i) transactions in the ordinary course of business and (ii) transaction in an aggregate amount not to exceed $100,000 in any given calendar year.
(gh) Borrower will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Lender as its interest may appear (and, if the Lender requests, naming the Lender as additional insureds therein) by insurers reasonably acceptable to the Lender. All premiums on such insurance shall be paid by Borrower and the policies of such insurance (or certificates therefor) delivered to the Lender. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of Borrower, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by Borrower and the Lender of written notice thereof, and shall be reasonably satisfactory to the Lender in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, Borrower shall promptly give written notice thereof to the Lender generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Borrower, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at Borrower’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of Borrower’s business in the ordinary course. In the event Borrower shall receive any proceeds of such insurance, Borrower shall immediately pay over such proceeds of insurance to Lender which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) or held as collateral security therefor, as the Lender may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Lender agrees to release such insurance proceeds to Borrower for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) written application for such release is received by the Lender from Borrower within 30 days of the receipt of such proceeds, and (iii) the Lender has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored to its condition immediately prior to the loss, destruction or other event giving rise to the payment of such insurance proceeds. Borrower hereby authorizes the Lender, at the Lender’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and Borrower irrevocably designates the Lender, its officers, Lenders, and attorneys, as Borrower’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Lender elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by Borrower subject to final approval of the Lender (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $[50,000]. All insurance proceeds shall be subject to the lien and security interest of the Lender hereunder. UNLESS BORROWER PROVIDES THE LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE LENDER MAY PURCHASE INSURANCE AT BORROWER’S EXPENSE TO PROTECT THE LENDER’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT BORROWER’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE LENDER MAY NOT PAY ANY CLAIMS THAT BORROWER MAKES OR ANY CLAIM THAT IS MADE AGAINST BORROWER IN CONNECTION WITH THE COLLATERAL. BORROWER MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE LENDER, BUT ONLY AFTER PROVIDING THE LENDER WITH EVIDENCE THAT BORROWER HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE LENDER PURCHASES INSURANCE FOR THE COLLATERAL, BORROWER WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE LENDER MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE BORROWER MAY BE ABLE TO OBTAIN ON ITS OWN.
(i) Borrower will at all times allow the Lender and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Lender or any other Lender may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to Borrower.
(j) If any Collateral is in the possession or control of Borrower or processors of Borrower and the Lender so requests, Borrower agrees to notify such processors in writing of the Lender’s lien and security interest therein and instruct them to hold all such Collateral for the Lender’s account and subject to the Lender’s instructions. Borrower will, upon the request of the Lender, 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 Lender 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 Lender or their respective representatives may seek to verify. As to any premises not owned by Borrower wherein any of the Collateral is located, if any, Borrower shall, upon the Lender’s request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the Lender or representatives, and otherwise is in form and substance reasonably acceptable to the Lender.
(k) Borrower agrees from time to time to deliver to the Lender 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 Accounts created or acquired by Borrower, 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 Borrower’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 the Lender may reasonably request. The Debtor Lender shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Lender considers appropriate and reasonable, and Borrower agrees to furnish all assistance and information, and perform any acts, which the Lender may require in connection therewith.
(l) Borrower will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements, and other agreements binding upon Borrower or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(m) Schedule C attached hereto 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 Borrower as of the date hereof that are registered with any governmental authority. Borrower shall promptly notify the Lender in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Lender a supplement to Schedule C to reflect such additional rights (provided Borrower’s failure to do so shall not impair the Lender’s security interest therein). Borrower owns or possesses rights to use all franchises, licenses, patents, trademarks, trade names, tradestyles, copyrights, and rights with respect to the foregoing which are required to conduct its business and which do not infringe on the rights of any third party. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and Borrower is not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(n) Schedule E attached hereto contains a true, complete and current listing of all Commercial Tort Claims held by Borrower as of the date hereof, each described by referring to a specific incident giving rise to the claim.
(o) Borrower agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Lender such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Lender may reasonably deem necessary or appropriate to assure the Secured Party Lender its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Lender may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbonUCC and any other applicable law, photographic or other reproduction of this Agreement or any (ii) such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof agreements with respect to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any patents, trademarks, copyrights, and all financing statements covering the Collateral or any part thereof similar intellectual property rights as the Secured Party Lender may require. In from time to time reasonably require to comply with the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any filing requirements of the ObligationsUnited States Patent and Trademark Office and the United States Copyright Office, and (iii) such control agreements with respect to Deposit Accounts, Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and to cause the Debtor agrees relevant depository institutions, financial intermediaries, and issuers to execute and deliver all such instruments and documents and to do all such other things control agreements, as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing Lender may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.time
Appears in 1 contract
Sources: Security Agreement (Advanced Life Sciences Holdings, Inc.)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is a duly organized and validly existing in good standing under the laws of the state of its organization. Each Debtor is the sole and lawful owner of the of, or has rights in, its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust agreement 's organizational agreements (e.g., charter, certificate or articles of incorporation or by-laws, certificate or articles of formation or operating agreement, partnership agreement, or other comparable organizational documents) or any -5- covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on SCHEDULE A attached hereto opposite such Debtor's name; and the such Debtor currently has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on SCHEDULE A attached hereto opposite such Debtor's name. The tangible Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at, or is in transit to, the locations listed under Columns 2 and 3 on SCHEDULE A attached hereto opposite such Debtor's name (as such information is supplemented as provided below) (collectively for each Debtor, the "PERMITTED COLLATERAL LOCATIONS"), except as to (i) any Collateral sold or otherwise disposed of in accordance with Section 8.10 of the Credit Agreement, (ii) items delivered to third parties for repair in the ordinary course, and (iii) any other Collateral at all times aggregating not more than $250,000. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business (it being understood and agreed by the parties hereto that a location which functions exclusively as an "employee call center" is not a chief executive office or a place of business for the purposes of this sentence) at a location other than those specified under Columns 2 or 3 on Schedule ASCHEDULE A or permit any Collateral to be located at a location other than a Permitted Collateral Location (other than as specified in the second sentence of this paragraph), in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s 's intent to do so; provided PROVIDED that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s 's legal name is name, state of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on SCHEDULE A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on SCHEDULE B attached hereto. The No Debtor shall not change its state of organization without the Agent's prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 thirty (30) days’ ' prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the "PERMITTED LIENS"). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons Persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon agrees it will not waste or against destroy the Debtor Collateral or any material part thereof and will not be negligent in the care or use of any material part of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and except to the extent that that, in the same are being contested reasonable business judgment of such Debtor, any such Collateral is no longer necessary for or desirable in good faith by appropriate proceedings which prevent foreclosure the proper conduct of the business of such Debtor. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other realization upon governmental requirement which is reasonably likely to have a Material Adverse Effect. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Debtor shall Secured Creditors have established adequate reserves thereforno responsibility to perform such obligations.
(f) Subject to Sections 4(d), 5(a), 6(b), 6(c), and 7(c) hereof, and except for sales, transfers or other dispositions permitted Section 4 hereof8.10 of the Credit Agreement, each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) The Each Debtor agrees will insure its Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to execute the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and deliverthe policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may be reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control AgreementAgent in all other respects. In case of any material loss, as damage to or destruction of the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement Collateral or any such financing statement is sufficient for filing as a financing statement by part thereof, the Secured Party without relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to or desirable in the conduct of such Debtor's business in the ordinary course. In the event any Debtor wherever shall receive any proceeds of such insurance after the occurrence and during the continuation of any Event of Default, such Debtor will immediately pay over such proceeds to the Agent for application in reduction of the Secured Party Obligations. In the absence of any such Event of Default, such Debtor shall be entitled to retain such insurance proceeds to reinvest in its sole discretion desires to file business in accordance with the sameCredit Agreement. The Each Debtor hereby -7- authorizes the Secured Party Agent, at the Agent's option, to file adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and all financing statements during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $500,000. Net insurance proceeds received by the Agent under the provisions hereof or under any policy or policies of insurance covering the Collateral or any part thereof pursuant to the terms hereof shall be applied to the reduction of, or otherwise held as security for, the Secured Party may require. In Obligations (whether or not then due); PROVIDED that in the event for any reason the law absence of any jurisdiction other than Illinois becomes or is applicable Event of Default, the Agent shall release such insurance proceeds to the Collateral or any part thereof, or relevant Debtor. All insurance proceeds shall be subject to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdictionAgent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY, AFTER GIVING NOTICE TO THE DEBTORS, PURCHASE INSURANCE AT THE DEBTORS' EXPENSE TO PROTECT THE AGENT'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR'S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER REASONABLE CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(h) On failure If any material portion of the Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to perform notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon the request of the 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 Creditors and their respective representatives to examine and inspect any of the covenants Collateral then in such party's possession and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that to verify from such party's own books and records any information concerning the Collateral or its any part thereof which the Secured Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, use commercially reasonable efforts to cause each party having any right, title or interest therein will be harmed in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allowing the removal of such Collateral by the giving Agent or its agents or representatives and otherwise in form and substance reasonably acceptable to the Agent; PROVIDED, HOWEVER, that no such agreement need be obtained with respect to any location owned by a party not affiliated with the Debtors if the value of the Collateral at all locations for all Debtors as to which such noticeagreements have not been obtained aggregates less than $250,000 at any one time.
(i) Upon the Agent's reasonable request, perform each Debtor agrees from time to time to deliver to the same Agent such evidence of the existence, identity and in so doing may expend such sums location of its Collateral and of its availability as the Secured Party may reasonably deem advisable in the performance thereof, collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the payment 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all reasonable assistance and information, and perform any reasonable acts, which the Agent may reasonably require in connection therewith.
(j) Each Debtor will comply in all material respects with the terms and conditions of any taxesand all leases, liens easements, right-of-way agreements and encumbrancesother agreements binding upon such Debtor or affecting the Collateral, expenditures made in defending against any adverse claimseach case which (i) cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon and (ii) where any such non-compliance is reasonably likely to have a Material Adverse Effect or is reasonably likely to result in a Lien upon any of their Property not otherwise permitted by the Credit Agreement.
(k) SCHEDULE C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark applications, tradenames, patents, patent applications and other expenditures which the Secured Party may be compelled to make intellectual property rights owned by operation of law or which the Secured Party may make by agreement or otherwise for the protection each of the Debtors as of the date hereof that are registered with any governmental authority. At the Agent's written request, the Debtors shall notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to SCHEDULE C to reflect such additional rights (provided the -9- Debtor's failure to do so shall not impair the Agent's security hereofinterest therein). All Each Debtor owns or possesses rights to use all franchises, licenses, copyrights, patents, trademarks, trade names, and similar rights which are required to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such sums rights, and amounts so expended shall be repayable the Debtors are not liable to any Person for infringement under applicable law with respect to any such rights as a result of its business operations.
(l) SCHEDULE F attached hereto contains a true, complete and current listing of all known Commercial Tort Claims in excess of $50,000 held or maintained by the Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from Debtors as of the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined hereof, each described by adding 2% reference to the rate per annum from time specific incident given rise to time announced by H▇▇▇▇▇ Trust the claim. Each Debtor agrees to execute and Savings Bank deliver to the Agent a supplement to this Agreement in the form attached hereto as its prime commercial rate with any change SCHEDULE G, or in such rate per annum as so determined by reason of a change in such prime commercial rate other form reasonably acceptable to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the DebtorAgent, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.promptly upon becoming
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents and warrants to, the Secured Party that:
(a) The No Debtor shall change its jurisdiction of organization without the Secured Party’s prior written consent. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Each Debtor’s trust agreement organizational registration number (if any) is set forth under its name under Column 1 on Schedule A.
(b) Each Debtor’s chief executive office is at the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and such Debtor has no other executive offices or any covenantplaces of business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The tangible Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (collectively for each Debtor, indenture as such locations may be amended or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted supplemented from time to time with written notice to the Secured Party hereunder.
as provided below, the “Permitted Collateral Locations”), except for (bi) The tangible Collateral which in the ordinary course of such Debtor’s principal residence business is in transit (x) between Permitted Collateral Locations or (y) to a customer, and (ii) tangible Collateral aggregating less than $200,000 in fair market value outstanding at any one time. If for any reason any tangible Collateral is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇any time kept or located at a location other than a Permitted Collateral Location, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; the Secured Party shall nevertheless have and the Debtor has no other residences (exclusive of vacation homes)retain a lien on and security interest therein. The Debtors own and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the such Debtor’s intent to do soso (at which time Schedule A will be deemed amended or supplemented with such additional or modified locations); provided that the each Debtor shall at all times maintain its principal residence chief executive office and, unless otherwise specifically agreed to in writing by the Secured Party, Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name and jurisdiction of organization is correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights as otherwise permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Credit Agreement. The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(f) Subject to Section 4 hereof, without the Secured Party’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) The Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things agreements herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the any Debtor or any of its property if such contravention or default could reasonably be expected to have a Material Adverse Effect, (ii) contravene any provision of any Debtor’s organizational documents (e.g., charter, articles or certificate of incorporation and by-laws, articles or certificate of formation and limited liability company operating agreement, partnership agreement or similar organizational documents) or (iii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (collectively for each Debtor, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of the Debtor’s business is in transit between Permitted Collateral Locations or to customers and (ii) Collateral aggregating less than $1,000,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and, except as permitted by the Credit Agreement, shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location (except as permitted by clause (i) and (ii) above), in each case without first providing the Secured Party 30 days’ Agent at least 3 Business Days prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office and Permitted Collateral Locations in the United States of America and, with respect to any new location, the and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect, subject to the limitations set forth in the Credit Agreement and the other limitations set forth herein.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral which is material and adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall will promptly pay when due all material taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in material violation of any material statute, ordinance or other governmental requirement. Each Debtor will perform its obligations under contracts or other agreements constituting part of the Collateral, except for such nonperformance as could not reasonably be expected to have a Material Adverse Effect, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(c), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) Each Debtor will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless an Event of Default has occurred and is continuing, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent in the case of losses exceeding $1,000,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and, upon the Agent’s request, instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the Agent after the occurrence and during the continuance of an Event of Default, 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s request, use reasonable commercial efforts to cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives after the occurrence and during the continuance of an Event of Default, and otherwise is in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent’s request, each Debtor agrees from time to time to deliver to the Agent such evidence of the existence, identity, and location of its Collateral (including, without limitation, schedules describing all Receivables created or acquired by such Debtor and reports stating the book value of its Inventory and Equipment by major category and location), in each case as the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(k) Schedule C attached hereto 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 date hereof that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof that are registered with any governmental authority, and shall submit to the Agent a supplement to Schedule C to reflect such additional rights (provided that any Debtor’s failure to do so shall not impair the Agent’s security interest therein). Each Debtor owns or possesses rights to use all franchises, licenses, patents, trademarks, trade names, tradestyles, copyrights, and rights with respect to the foregoing which are required to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and the Debtors are not to their Knowledge liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(l) Schedule F attached hereto contains a true, complete and current listing of all Commercial Tort Claims held by the Debtors as of the date hereof, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to execute and deliverdeliver to the Agent an agreement in the form attached hereto as Schedule H, and or in such other form reasonably acceptable to the Agent, promptly upon becoming aware of any Commercial Tort Claim of such Debtor arising after the date hereof (provided any Debtor’s failure to do so shall cause not impair the Intermediary Agent’s security interest therein).
(m) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as the 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, 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 the Agent may from time to time reasonably require. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to , including financing statements describing the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.“all
Appears in 1 contract
Sources: Credit Agreement (CTS Corp)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Agent and each Secured Party Creditor that:
(a) The Each Debtor is duly organized and validly existing in good standing under the sole and lawful owner laws of the state of its organization. No Debtor shall change its state of organization without the Agent’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Debtor’s chief executive office and principal place of business is at the location listed opposite such Debtor’s name under column 2 on Schedule A attached hereto; and such Debtor has no other executive offices or places of business (other than operating job sites in the ordinary course of such Debtor’s business) other than those listed opposite such Debtor’s name under column 3 on Schedule A attached hereto. Each Debtor’s organizational identification number is set forth under its name in column 1 on Schedule A attached hereto. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed opposite such Debtor’s name under column 4 on Schedule A attached hereto opposite such Debtors’ name, or is or shall be located at such Debtor’s then operating job sites in the ordinary course of its business, or is or shall be in transit to or between any of the foregoing locations (collectively, the “Permitted Collateral Locations”) in the ordinary course of business. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest in such Collateral. No Debtor shall move its chief executive office or maintain a place of business at a location other than those specified under columns 2 and/or 3 on Schedule A attached hereto other than temporarily in the ordinary course of business or permit any Collateral in excess of $1,000,000 to be located at a location other than a Permitted Collateral Location other than temporarily in the ordinary course of business or at a job site, in each case without first providing the Agent 30 days prior written notice of such Debtor’s intent to do so; provided, however, that each Debtor shall at all times maintain its chief executive office and places of business in the United States of America and, with respect to any new chief executive office or place of business or location of Collateral, such Debtor shall have taken all action reasonably requested by the Agent or any Secured Creditor to maintain the lien and has full right, power and authority to enter into this Agreement and to perform each and all security interest of the matters Agent in the Collateral at all times fully perfected and things herein provided forin full force and effect. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g. certificate of incorporation, articles of incorporation, by‑laws, certificate of formation, limited liability company operating agreement or partnership agreement, as applicable) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent in the Collateral hereunder. Each Debtor’s organizational registration number (if any) is set forth on Schedule A attached hereto.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) other liens permitted by the rights of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Encumbrances”). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(fc) Subject to Section 4 Sections 4(a), 6(c) and 7(a) hereof, no Debtor shall without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any interest therein, except that (i) until an Event of Default has occurred and is continuing and thereafter until notified by the Agent that it intends to foreclose or otherwise realize upon such Collateral, each Debtor may use and lease its Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Section 7.14 of the Credit Agreement), and (ii) until an Event of Default has occurred and is continuing, the Debtor may sell or otherwise dispose of Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Sections 7.14 and 7.15 of the Credit Agreement), and may grant liens on Collateral to the extent permitted by Sections 4.1 and/or 7.11 of the Credit Agreement, provided that a sale, lease or other disposition in the ordinary course of business shall not under any circumstance include a transfer, sale or lease in satisfaction, partial or complete, of a debt owing by such Debtor unless the debt so satisfied is secured with a lien on or ownership right in the goods in question which is prior to the security interest of the Agent therein and is a Permitted Encumbrance.
(d) Each Debtor shall at all times insure the Collateral consisting of tangible personal property against such risks and hazards as other persons or entities similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Agent may reasonably specify, in amounts and under policies containing lenders loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Secured Creditors as additional insureds therein) and by insurers reasonably acceptable to the Agent, it being agreed that the foregoing shall not preclude any Debtor from directly or indirectly self insuring risks as and to the extent prudent and customary for companies similarly situated and then to the extent permitted by the Credit Agreement. All premiums on such insurance shall be paid by the Debtors and, upon the Agent’s request, the policies of such insurance (or certificates therefor) shall be delivered by the Debtors to the Agent. All insurance required hereby shall provide to the extent commercially reasonably available that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. Each Debtor may retain any proceeds of such insurance arising out of the loss, damage or destruction of the Collateral owned or leased by such Debtor so long as no Event of Default shall have occurred and be continuing or shall arise and be continuing after giving effect to such loss, damage or destruction. After the occurrence and during the continuance of any Event of Default, each Debtor will immediately pay over such proceeds of insurance to the Agent which shall thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefore, as the Agent may then determine. All insurance proceeds shall be subject to the lien and security interest of the Agent in the Collateral. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after - 7 - the occurrence and during the continuance of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, in such case as such Debtor’s attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance.
(e) Each Debtor shall, at all reasonable times upon reasonable prior notice, allow the Agent, any Secured Creditor, and their respective representatives free access to and right of inspection of the Collateral during such Debtor’s normal business hours. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right to verify all or any interest thereinpart of the Collateral in any manner, and through any medium, which the Agent considers appropriate, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(f) Each Debtor’s legal name and state of organization is correctly set forth in Schedule A attached hereto. No Debtor has transacted business at any time during the immediately preceding five‑year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Agent.
(g) Schedule C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights and licenses, patent applications and other intellectual property rights that are owned by the Debtors and are registered with any governmental authority. The relevant Debtor shall promptly notify the Agent in writing of any such additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C attached hereto to reflect such additional rights (provided such Debtor’s failure to do so shall not impair the Agent’s security interest therein). The Debtors own or possess rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights and licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct their business. To the best of the Debtors’ knowledge, no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Debtor is liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(h) Schedule F attached hereto contains a true, complete and current listing of all Commercial Tort Claims held or maintained by the Debtors as of the date hereof for an amount equal to or greater than $1,000,000, each described by reference to the specific incident giving rise to the applicable claim. Each Debtor agrees to execute and deliverdeliver to the Agent a supplement to this Agreement in the form attached hereto as Schedule G, and shall cause or in such other form reasonably acceptable - 8 - to the Intermediary Agent, promptly upon becoming aware of any other Commercial Tort Claim in an amount equal to or greater than $1,000,000 held or maintained by any Debtor arising after the date hereof.
(i) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunderof the Agent in the Collateral granted hereby, including, without limitation, a Securities Account Control Agreement executed by (i) the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form execution and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and delivery of such financing statements, statements and amendments thereof and supplements thereto or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) the execution and delivery of such patent, trademark and copyright assignment agreements as the 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) the execution and delivery of and the use of commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries and letter of credit issuers to execute and deliver such control agreements with respect to all Letter-of-Credit Rights and electronic Chattel Paper as the Agent may from time to time reasonably require in order to comply accordance with the UCCterms hereof. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided, however, that prior to the occurrence of any Event of Default the Debtors shall not have any obligation to reimburse the Agent for the reasonable costs and expenses of more than one lien search during any calendar year. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hj) On Upon the occurrence and during the continuance of any Event of Default, on failure of the any Debtor to perform any of the its covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, option perform the same and in so doing may expend such sums as the Secured Party Agent may reasonably deem advisable in the performance thereof, including, without limitation, the (i) payment of any insurance premiums, (ii) payment of any taxes, liens and encumbrances, (iii) expenditures made in defending against any adverse claims, and (iv) all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereofCollateral. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding equal to the sum of 2% to plus the rate per annum otherwise applicable to Domestic Rate Loans under the Revolving Facility in effect from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in (such rate per annum as so determined by reason of a change in such prime commercial rate being hereinafter referred to be effective on as the date of such change in said prime commercial rate“Reimbursement Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the any Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/the Agent or any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the Secured Party Agent for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Emcor Group Inc)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g., charter, articles or certificate of incorporation and by-laws, articles or certificate of formation and limited liability company operating agreement, partnership agreement or similar organizational documents) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and as of the date hereof such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (collectively for each Debtor, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of the Debtor’s business is in transit between Permitted Collateral Locations and (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s intent to do so; provided that that, unless the Agent and the Required Lenders otherwise consent, each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new location, the and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all respects its obligations under any contract or other agreement constituting part of the Collateral except where the failure to so perform could not reasonably be expected to have a Material Adverse Effect, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(c), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) The Each Debtor agrees will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit (other than as a result of common carriage), in amounts and under policies containing loss payable clauses to execute the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and deliverthe policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may be reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such Agent in all other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requirerespects. In the event for any reason the law case of any jurisdiction other than Illinois becomes material loss, damage to or is applicable to destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance in an amount exceeding $100,000 in the aggregate for all Debtors with respect to any event or occurrence, such Debtor shall notify the Agent and, upon the Agent’s request, immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the ObligationsSecured Obligations (whether or not then due) or held as collateral security therefor, as provided for in the Debtor Credit Agreement; provided, however, that the Agent agrees to execute release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) the relevant Debtor has requested that the Agent so release such insurance proceeds, and deliver all (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored to substantially its condition immediately prior to the loss, destruction or other event giving rise to the payment of such instruments insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and documents settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do all everything necessary to carry out such other things purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the Secured Party relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in its sole discretion deems necessary or appropriate the case of losses exceeding $100,000. All insurance proceeds shall be subject to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdictionAgent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(hi) On failure Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(j) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to perform notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors and their respective representatives to examine and inspect any of the covenants Collateral then in such party’s possession and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that to verify from such party’s own books and records any information concerning the Collateral or its any part thereof which the Secured Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s request, use good faith efforts to cause each party having any right, title or interest therein will be harmed in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the giving Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(k) Upon the Agent’s request, each Debtor agrees from time to time to deliver to the Agent such evidence of such noticethe existence, perform the same identity, and in so doing may expend such sums location of its Collateral and of its availability as the Secured Party may reasonably deem advisable in the performance thereof, collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the payment 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(l) Each Debtor will comply in all material respects with the terms and conditions of any taxesand all leases, liens and encumbranceseasements, expenditures made in defending against any adverse claimsright-of-way agreements, and all other expenditures agreements binding upon such Debtor or affecting the Collateral, in each case which cover the Secured Party may premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon, in each case where the failure to so comply could reasonably be compelled expected to make by operation cause an Event of law Default or which result in the Secured Party may make by agreement or otherwise for the protection creation of a Lien on a material portion of the Collateral.
(m) Schedule C attached hereto 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 date hereof that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C to reflect such additional rights (provided any Debtor’s failure to do so shall not impair the Agent’s security hereofinterest therein). All such sums Each Debtor owns or possesses rights to use all franchises, licenses, patents, trademarks, trade names, tradestyles, copyrights, and amounts so expended shall be repayable by rights with respect to the Debtor immediately without foregoing which are required to conduct its business. No event has occurred which permits, or after notice or demandlapse of time or both would permit, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance revocation or termination of any covenant or agreement by the Secured Party on behalf of the Debtorsuch rights, and no such advancement or expenditure therefor, shall relieve the Debtor of Debtors are not liable to any default person for infringement under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action applicable law with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇such rights as a result of its business operations.
(n) Schedule F attached hereto contains a true, statement or estimate procured from the appropriate public office or holder complete and current listing of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.all
Appears in 1 contract
Sources: Security Agreement (Nobel Learning Communities Inc)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization, is the sole and lawful owner of the Collateral, Collateral for which a security interest is granted by it hereunder and has full right, the power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein Each Debtor's Federal tax identification number is set forth, will not (i) contravene or constitute a default forth under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance its name under Column 1 on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.SCHEDULE A.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on SCHEDULE A attached hereto opposite such Debtor's name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on SCHEDULE A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on SCHEDULE A attached hereto opposite such Debtor's name (collectively for each Debtor, the "PERMITTED COLLATERAL LOCATIONS"), except as to any Collateral sold or otherwise disposed of in accordance with this Agreement and the Credit Agreement. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule ASCHEDULE A or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ ' prior written notice of the Debtor’s 's intent to do so; provided PROVIDED that the each Debtor shall at all times maintain its principal residence chief executive office and places of business in the United States of America and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein Agent therein, and other Liens permitted by the Credit Agreement, (ii) the rights liens in existence as of the Intermediary date hereof related to projects financed by industrial revenue bonds or granted in connection with retention, performance or similar bonds to secure performance of such Debtor's indemnity obligation with respect thereto and (iii) liens set forth in on SCHEDULE D hereto (herein, the Securities Account Control Agreement (as hereinafter defined"PERMITTED LIENS"). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors other than holders of Permitted Liens.
(ed) The Each Debtor shall will promptly pay when due all material taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any Lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral unless such portion of collateral is of nominal value. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any material statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(f) Subject to Section 4 hereofSections 4(b), 5(a), 6(b), 6(c), and 8(c) hereof and the terms of the Credit Agreement, each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Secured Creditors as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Secured Creditors generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, such Debtor will immediately pay over such proceeds to the Agent; PROVIDED that in the absence of any Event of Default such Debtors shall be entitled to retain such insurance proceeds to the extent such proceeds are used for such repair or replacement or to retain for any purpose proceeds of any insurance recovery that does not exceed $25,000 in the aggregate. Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $250,000. Net insurance proceeds received by the Agent under the provisions hereof or under any policy or policies of insurance covering the Collateral or any part thereof pursuant to the terms hereof shall be applied to the reduction of the Obligations (whether or not then due); PROVIDED, HOWEVER, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed required by this Agreement to be so replaced or restored if, but only if, (i) at the time of release no Event of Default exists hereunder, (ii) written application for such release is received from such Debtor within 30 days of receipt of, or in the event received by the Agent, notice of Agent's receipt of, such proceeds and (iii) the Agent has received evidence reasonably satisfactory to it that the Collateral lost, damaged or destroyed has been or will be replaced or restored, or that proceeds do not exceed $25,000 in the aggregate. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder.
(h) Each Debtor will allow the Secured Creditors, and their respective representatives free access to and right of inspection of the Collateral.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions upon ▇▇▇▇▇▇'s receipt of notification of the occurrence and continuation of an Event of Default. Each Debtor will, upon the request of the Agent upon ▇▇▇▇▇▇'s receipt of notification of the occurrence and continuation of an Event of Default, 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allowing the removal of such Collateral by the Agent and otherwise in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent's request, each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(k) Each Debtor will comply in all material respects with the (i) terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and (ii) any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(l) For at least the past five years, no Debtor has invoiced Receivables or otherwise transacted business, and does not invoice Receivables or otherwise transact business, under any trade names other than its name set forth on its signature page to this Agreement or as otherwise set forth on SCHEDULE B hereto. Each Debtor agrees it will not change its name or transact business under any other trade name, in each case without first giving the Agent at least 30 days' prior written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and executing such financing statements, and amendments thereof statement or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCC. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without prior notice thereof to the such Debtor wherever the Secured Party in its sole discretion desires Agent deems necessary or desirable to file perfect or protect the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requiresecurity interest granted hereby. In the event for any reason the law of any jurisdiction other than Illinois New York becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hn) On failure of the a Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem 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 the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereof. To the extent practicable, the Agent shall notify the Debtor in advance of such performance by the Agent. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or upon demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days for the actual number of days elapsed) determined by adding 2% to the rate per annum Alternate Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Alternate Base Rate to be effective on the date of such change in said prime commercial rateAlternate Base Rate (such rate per annum as so determined being hereinafter referred to as the "DEFAULT RATE"). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, Agent in making any payment hereby authorized, authorized may do so according to any b▇▇▇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 b▇▇▇bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, Agent in performing any act hereunder, hereunder shall be the sole judge of whether the relevant Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.same
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Agent and the Lenders that:
(a) The Each Debtor is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization, is the sole and lawful owner of the Collateral, Collateral granted by it hereunder and has full right, the power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein Each Debtor's Federal tax identification number is set forth, will not (i) contravene or constitute a default forth under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance its name under Column 1 on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.Schedule A.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor's name; and the such Debtor has no other residences executive offices or places of business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name (exclusive of vacation homescollectively for each Debtor, the "Permitted Collateral Locations"). The If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent 30 days’ days prior written notice of the Debtor’s 's intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office and places of business and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 7.14 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the "Permitted Encumbrances"). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured PartyAgent or any Lender.
(ed) The Each Debtor shall will promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Agent and the Lenders have no responsibility to perform such obligations.
(f) Subject to Sections 4(b), 5(a), 6(b), 6(c), and 7(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof7.16 thereof), each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Lenders as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent and the Lenders generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course and such Collateral and all other Collateral lost, damaged or destroyed during the immediately preceding twelve (12) calendar months had an aggregate fair market value, prior to its loss, damage or destruction, of less than $250,000. In the event any Debtor shall receive any proceeds of such insurance, such Debtor will immediately pay over such proceeds to the Agent; provided that, in the absence of any continuing Event of Default, such Debtor shall be entitled to such insurance proceeds to the extent and in the manner provided for in this Section 3(g). Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $250,000. Net insurance proceeds received by the Agent under the provisions hereof or under any policy or policies of insurance covering the Collateral or any part thereof pursuant to the terms hereof shall be applied to the reduction of the Obligations (whether or not then due); provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed required by this Agreement to be so replaced or restored if, but only if, (i) at the time of release no Event of Default exists hereunder, (ii) written application for such release is received from such Debtor within 30 days of receipt of, or in the event received by the Agent notice of Agent's receipt of, such proceeds and (iii) the Agent has received evidence reasonably satisfactory to it that the Collateral lost, damaged or destroyed has been or will be replaced. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. Unless the Debtors provide the Agent with evidence of the insurance coverage required by this Agreement, the Agent may purchase insurance at the Debtors' expense to protect the Agent's interests in the Collateral. This insurance may, but need not, protect any debtor's interests in the Collateral. The coverage purchased by the Agent may not pay any claims that any Debtor makes or any claim that is made against such Debtor in connection with the Collateral. The Debtors may later cancel any such insurance purchased by the Agent, but only after providing the Agent with evidence that the Debtors have obtained insurance as required by this Agreement. If the Agent purchases insurance for the Collateral, the Debtors will be responsible for the costs of that insurance, including interest and any other charges that the Agent may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance may be added to the Obligations secured hereby. The costs of the insurance may be more than the cost of insurance the Debtors may be able to obtain on their own.
(h) Each Debtor will, at all times allow the Agent, any Lender, and their respective representatives free access to and right of inspection of the Collateral; provided, however, that in the absence of any continuing Event of Default any such access or inspection shall only be required at reasonable times during such Debtor's normal business hours upon prior written notice to such Debtor and otherwise in accordance with Section 7.6 of the Credit Agreement.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon request of the Agent, authorize and instruct all bailees and any other parties (except patients in possession of Collateral consisting of supplies for such person's patient care treatments), if any, at any time processing, labeling, packaging, holding, storing, shipping or transferring all or any part of the Collateral to permit the Agent, any Lender 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 Agent, any Lender or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, use reasonable efforts to cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allowing the removal of such Collateral by the Agent or by the Lenders and otherwise in form and substance reasonably acceptable to the Agent.
(j) Each Debtor agrees from time to time to deliver to the Agent and any Lender 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 the Agent or such Lender may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate (including, without limitation, the verification of Collateral by use of a fictitious name), and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith, provided that, unless an Event of Default has occurred and is continuing, the Agent shall not contact any account debtor with respect to any of the foregoing matters without the relevant Debtor's prior written consent.
(k) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(l) No Debtor has invoiced Receivables or otherwise transacted business, and does not invoice Receivables or otherwise transact business, under any trade names other than its name set forth on its signature page to this Agreement or as otherwise set forth on Exhibit B hereto. Each Debtor agrees it will not change its name or transact business under any other trade name, in each case without first giving the Agent 30 days' prior written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) executing such financing statements, and amendments thereof statement or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCCUCC and (ii) executing such patent, trademark, and copyright agreements as the 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. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without prior notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The same (and Agent agrees to provide the relevant Debtor hereby authorizes notice after any such filing is made pursuant to this provision, provided the Secured Party failure to file any and all financing statements covering give such notice shall not affect the Collateral validity or any part thereof as enforceability of the Secured Party may requirerelevant filing). In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction. Each Debtor agrees to ▇▇▇▇ its corporate records to reflect the security interest of the Agent in such Debtor's Collateral.
(hn) On failure of the a Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 after two Business Days Days' prior written notice to such Debtor (unless in the Secured Party reasonably determines that reasonable judgment of the Agent immediate payment or performance is necessary to protect or preserve the Collateral or its the Agent's interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.therein
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Guarantor hereby covenants and agrees with, and represents and warrants to, the Secured Party Lender that:
(a) The Debtor Guarantor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Guarantor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor Guarantor or any provision of the DebtorGuarantor’s trust agreement organizational documents (e.g., charter, articles or certificate of incorporation and bylaws or similar organizational documents) or any covenant, indenture or agreement of or affecting the Debtor Guarantor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor Guarantor except for the lien and security interest granted to the Secured Party Lender hereunder.
(b) The DebtorGuarantor’s principal residence chief executive office is located at 1▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; , and the Debtor Guarantor has no other residences executive offices or places of business other than those listed under on Schedule A attached hereto. The Collateral is and shall remain in Guarantor’s possession or control at the locations listed on Schedule A attached hereto (exclusive of vacation homesthe “Permitted Collateral Locations”). The Debtor If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Lender shall nevertheless have and retain a lien on and security interest therein. Guarantor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Lender at least 30 days’ days prior written notice of the DebtorGuarantor’s intent to do so; provided that the Debtor Guarantor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect unless specifically agreed to any new location, in writing by the Debtor Lender and Guarantor shall have taken all action reasonably requested by the Secured Party Lender to maintain the lien and security interest of the Secured Party Lender in the Collateral at all times fully perfected and in full force and effect.
(c) The DebtorGuarantor’s legal name is name, jurisdiction of organization and organizational number are correctly set forth in the first paragraph on Schedule A of this Agreement. The Debtor Guarantor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names set forth on Schedule B attached hereto. The Debtor Guarantor shall not change its jurisdiction of organization without the Lender’s prior written consent. Guarantor shall not change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyLender.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Lender therein and (ii) other Permitted Liens. To the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor extent it is commercially reasonable, Guarantor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured PartyLender.
(e) The Debtor shall Guarantor will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the Debtor Guarantor shall have established adequate reserves therefor.
(f) Subject Guarantor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Guarantor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. To the extent it is commercially reasonable, Guarantor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Lender has no responsibility to Section 4 hereofperform such obligations.
(g) Guarantor agrees it will not, without the Secured PartyLender’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or interest therein except for (i) transactions in the ordinary course of business and (ii) transaction in an aggregate amount not to exceed $100,000 in any interest thereingiven calendar year.
(gh) Guarantor will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Lender as its interest may appear (and, if the Lender requests, naming the Lender as additional insureds therein) by insurers reasonably acceptable to the Lender. All premiums on such insurance shall be paid by Guarantor and the policies of such insurance (or certificates therefor) delivered to the Lender. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of Guarantor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by Guarantor and the Lender of written notice thereof, and shall be reasonably satisfactory to the Lender in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, Guarantor shall promptly give written notice thereof to the Lender generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Guarantor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at Guarantor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of Guarantor’s business in the ordinary course. In the event Guarantor shall receive any proceeds of such insurance, Guarantor shall immediately pay over such proceeds of insurance to Lender which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) or held as collateral security therefor, as the Lender may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Lender agrees to release such insurance proceeds to Guarantor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) written application for such release is received by the Lender from Guarantor within 30 days of the receipt of such proceeds, and (iii) the Lender has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored to its condition immediately prior to the loss, destruction or other event giving rise to the payment of such insurance proceeds. Guarantor hereby authorizes the Lender, at the Lender’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and Guarantor irrevocably designates the Lender, its officers, Lenders, and attorneys, as Guarantor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Lender elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by Guarantor subject to final approval of the Lender (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $[50,000]. All insurance proceeds shall be subject to the lien and security interest of the Lender hereunder. UNLESS GUARANTOR PROVIDES THE LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE LENDER MAY PURCHASE INSURANCE AT GUARANTOR’S EXPENSE TO PROTECT THE LENDER’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT GUARANTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE LENDER MAY NOT PAY ANY CLAIMS THAT GUARANTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST GUARANTOR IN CONNECTION WITH THE COLLATERAL. GUARANTOR MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE LENDER, BUT ONLY AFTER PROVIDING THE LENDER WITH EVIDENCE THAT GUARANTOR HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE LENDER PURCHASES INSURANCE FOR THE COLLATERAL, GUARANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE LENDER MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE GUARANTOR MAY BE ABLE TO OBTAIN ON ITS OWN.
(i) Guarantor will at all times allow the Lender and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Lender or any other Lender may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to Guarantor.
(j) If any Collateral is in the possession or control of Guarantor or processors of Guarantor and the Lender so requests, Guarantor agrees to notify such processors in writing of the Lender’s lien and security interest therein and instruct them to hold all such Collateral for the Lender’s account and subject to the Lender’s instructions. Guarantor will, upon the request of the Lender, 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 Lender 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 Lender or their respective representatives may seek to verify. As to any premises not owned by Guarantor wherein any of the Collateral is located, if any, Guarantor shall, upon the Lender’s request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the Lender or representatives, and otherwise is in form and substance reasonably acceptable to the Lender.
(k) Guarantor agrees from time to time to deliver to the Lender 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 Accounts created or acquired by Guarantor, 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 Guarantor’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 the Lender may reasonably request. The Debtor Lender shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Lender considers appropriate and reasonable, and Guarantor agrees to furnish all assistance and information, and perform any acts, which the Lender may require in connection therewith.
(l) Guarantor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements, and other agreements binding upon Guarantor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(m) Schedule C attached hereto 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 Guarantor as of the date hereof that are registered with any governmental authority. Guarantor shall promptly notify the Lender in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Lender a supplement to Schedule C to reflect such additional rights (provided Guarantor’s failure to do so shall not impair the Lender’s security interest therein). Guarantor owns or possesses rights to use all franchises, licenses, patents, trademarks, trade names, tradestyles, copyrights, and rights with respect to the foregoing which are required to conduct its business and which do not infringe on the rights of any third party. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and Guarantor is not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(n) Schedule E attached hereto contains a true, complete and current listing of all Commercial Tort Claims held by Guarantor as of the date hereof, each described by referring to a specific incident giving rise to the claim.
(o) Guarantor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Lender such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Lender may reasonably deem necessary or appropriate to assure the Secured Party Lender its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Lender may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as the Lender 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, 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 the Lender may from time to time reasonably require. The Debtor Guarantor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Advanced Life Sciences Holdings, Inc.)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Agent and each Secured Party Creditor that:
(a) The Each Debtor is a duly organized and validly existing in good standing under the sole and lawful owner laws of the state of its organization. No Debtor shall change its state of organization without the Agent’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Debtor’s chief executive office and principal place of business is at the location listed opposite such Debtor’s name under column 2 on Schedule A attached hereto; and such Debtor has no other executive offices or places of business (other than operating job sites in the ordinary course of such Debtor’s business) other than those listed opposite such Debtor’s name under column 3 on Schedule A attached hereto. Each Debtor’s organizational identification number is set forth under its name in column 1 on Schedule A attached hereto. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed opposite such Debtor’s name under column 4 on Schedule A attached hereto opposite such Debtors’s name or is or shall be located at such Debtor’s then operating job sites in the ordinary course of its business or is or shall be in transit to or between any of the foregoing locations (collectively, the “Permitted Collateral Locations”) other than temporarily in the ordinary course of business. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest in such Collateral. No Debtor shall move its chief executive office or maintain a place of business at a location other than those specified under columns 2 and/or 3 on Schedule A attached hereto other than temporarily in the ordinary course of business or permit any Collateral in excess of $1,000,000 to be located at a location other than a Permitted Collateral Location other than temporarily in the ordinary course of business or a job site, in each case without first providing the Agent 30 days prior written notice of such Debtor’s intent to do so; provided, however, that each Debtor shall at all times maintain its chief executive office and places of business in the United States of America and, with respect to any new chief executive office or place of business or location of Collateral, such Debtor shall have taken all action reasonably requested by the Agent or any Secured Creditor to maintain the lien and has full right, power and authority to enter into this Agreement and to perform each and all security interest of the matters Agent in the Collateral at all times fully perfected and things herein provided forin full force and effect. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g. certificate of incorporation, articles of incorporation, by-laws, certificate of formation, limited liability company operating agreement or partnership agreement, as applicable) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent in the Collateral hereunder. Each Debtor’s organizational registration number (if any) is set forth on Schedule A attached hereto.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) other liens permitted by the rights of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Encumbrances”). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(fc) Subject to Section 4 Sections 4(a), 6(c) and 7(a) hereof, no Debtor shall without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any interest therein, except that (i) until an Event of Default has occurred and is continuing and thereafter until notified by the Agent that it intends to foreclose or otherwise realize upon such Collateral, each Debtor may use and lease its Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Section 7.14 of the Credit Agreement), and (ii) until an Event of Default has occurred and is continuing, the Debtor may sell or otherwise dispose of Collateral to the extent not prohibited by the terms of the Credit Agreement (including, without limitation, Sections 7.14 and 7.15 of the Credit Agreement), and may grant liens on Collateral to the extent permitted by Sections 4.1 and/or 7.11 of the Credit Agreement, provided that a sale, lease or other disposition in the ordinary course of business shall not under any circumstance include a transfer, sale or lease in satisfaction, partial or complete, of a debt owing by such Debtor unless the debt so satisfied is secured with a lien on or ownership right in the goods in question which is prior to the security interest of the Agent therein and is a Permitted Encumbrance under the Credit Agreement.
(d) Each Debtor shall at all times insure the Collateral consisting of tangible personal property against such risks and hazards as other persons or entities similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Agent may reasonably specify, in amounts and under policies containing lenders loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Secured Creditors as additional insureds therein) and by insurers reasonably acceptable to the Agent, it being agreed that the foregoing shall not preclude any Debtor from directly or indirectly self insuring risks as and to the extent prudent and customary for companies similarly situated and then to the extent permitted by the Credit Agreement. All premiums on such insurance shall be paid by the Debtors and, upon the Agent’s request, the policies of such insurance (or certificates therefor) shall be delivered by the Debtors to the Agent. All insurance required hereby shall provide to the extent commercially reasonably available that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. Each Debtor may retain any proceeds of such insurance arising out of the loss, damage or destruction of the Collateral owned or leased by such Debtor so long as no Event of Default shall have occurred and be continuing or shall arise and be continuing after giving effect to such loss, damage or destruction. After the occurrence and during the continuance of any Event of Default, each Debtor will immediately pay over such proceeds of insurance to the Agent which shall thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefore, as the Agent may then determine. All insurance proceeds shall be subject to the lien and security interest of the Agent in the Collateral. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuance of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, in such case as such Debtor’s attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance.
(e) Each Debtor shall, at all reasonable times upon reasonable prior notice, allow the Agent, any Secured Creditor, and their respective representatives free access to and right of inspection of the Collateral during such Debtor’s normal business hours. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right to verify all or any interest thereinpart of the Collateral in any manner, and through any medium, which the Agent considers appropriate, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(f) Each Debtor’s legal name and state of organization is correctly set forth in Schedule A attached hereto. No Debtor has transacted business at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Agent.
(g) Schedule C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights and licenses, patent applications and other intellectual property rights that are owned by the Debtors and are registered with any governmental authority. The relevant Debtor shall promptly notify the Agent in writing of any such additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C attached hereto to reflect such additional rights (provided such Debtor’s failure to do so shall not impair the Agent’s security interest therein). The Debtors own or possess rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights and licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct their business. To the best of the Debtors’ knowledge, no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Debtor is liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(h) Schedule F attached hereto contains a true, complete and current listing of all Commercial Tort Claims held or maintained by the Debtors as of the date hereof for an amount equal to or greater than $1,000,000, each described by reference to the specific incident giving rise to the applicable claim. Each Debtor agrees to execute and deliverdeliver to the Agent a supplement to this Agreement in the form attached hereto as Schedule F, and shall cause or in such other form reasonably acceptable to the Intermediary Agent, promptly upon becoming aware of any other Commercial Tort Claim in an amount equal to or greater than $1,000,000 held or maintained by any Debtor arising after the date hereof.
(i) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunderof the Agent in the Collateral granted hereby, including, without limitation, a Securities Account Control Agreement executed by (i) the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form execution and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and delivery of such financing statements, statements and amendments thereof and supplements thereto or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) the execution and delivery of such patent, trademark and copyright assignment agreements as the 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) the execution and delivery of and the use of commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries and letter of credit issuers to execute and deliver such control agreements with respect to all Deposit Accounts, Securities Accounts, Letter-of-Credit Rights and electronic Chattel Paper as the Agent may from time to time reasonably require in order to comply accordance with the UCCterms hereof. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided, however, that prior to the occurrence of any Event of Default the Debtors shall not have any obligation to reimburse the Agent for the reasonable costs and expenses of more than one lien search during any calendar year. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hj) On Upon the occurrence and during the continuance of any Event of Default, on failure of the any Debtor to perform any of the its covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, option perform the same and in so doing may expend such sums as the Secured Party Agent may reasonably deem advisable in the performance thereof, including, without limitation, the (i) payment of any insurance premiums, (ii) payment of any taxes, liens and encumbrances, (iii) expenditures made in defending against any adverse claims, claims and (iv) all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereofCollateral. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding equal to the sum of 2% to plus the rate per annum otherwise applicable to Domestic Rate Loans in effect from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in (such rate per annum as so determined by reason of a change in such prime commercial rate being hereinafter referred to be effective on as the date of such change in said prime commercial rate“Reimbursement Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the any Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/the Agent or any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the Secured Party Agent for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Emcor Group Inc)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Agent and each Secured Party Creditor that:
(a) The Each Debtor is a duly organized and validly existing in good standing under the sole and lawful owner laws of the state of its organization. No Debtor shall change its state of organization without the Agent’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Debtor’s chief executive office and principal place of business is at the location listed opposite such Debtor’s name under column 2 on Schedule A attached hereto; and such Debtor has no other executive offices or places of business (other than operating job sites in the ordinary course of such Debtor’s business) other than those listed opposite such Debtor’s name under column 3 on Schedule A attached hereto. Each Debtor’s organizational identification number is set forth under its name in column 1 on Schedule A attached hereto. The Collateral owned or leased by each Debtor is and shall remain in such Debtor’s possession or control at the locations listed opposite such Debtor’s name under column 4 on Schedule A attached hereto opposite such Debtors’s name or is or shall be located at such Debtor’s then operating job sites in the ordinary course of its business or is or shall be in transit to or between any of the foregoing locations (collectively, the “Permitted Collateral Locations”) other than temporarily in the ordinary course of business. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest in such Collateral. No Debtor shall move its chief executive office or maintain a place of business at a location other than those specified under columns 2 and/or 3 on Schedule A attached hereto other than temporarily in the ordinary course of business or permit any Collateral in excess of $1,000,000 to be located at a location other than a Permitted Collateral Location other than temporarily in the ordinary course of business or a job site, in each case without first providing the Agent 30 days prior written notice of such Debtor’s intent to do so; provided, however, that each Debtor shall at all times maintain its chief executive office and places of business in the United States of America and, with respect to any new chief executive office or place of business or location of Collateral, such Debtor shall have taken all action reasonably requested by the Agent or any Secured Creditor to maintain the lien and has full right, power and authority to enter into this Agreement and to perform each and all security interest of the matters Agent in the Collateral at all times fully perfected and things herein provided forin full force and effect. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g.certificate of incorporation, articles of incorporation, by-laws, certificate of formation, limited liability company operating agreement or partnership agreement, as applicable) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent in the Collateral hereunder. Each Debtor’s organizational registration number (if any) is set forth on Schedule A attached hereto.
(b) The Debtor’s principal residence is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) other liens permitted by the rights of Credit Agreement or the Intermediary set forth in the Securities Account Control Term Loan Agreement (as hereinafter definedherein, the “Permitted Encumbrances”). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(fc) Subject to Section 4 Sections 4(a), 6(c) and 7(a) hereof, no Debtor shall without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any interest therein, except that (i) until an Event of Default has occurred and is continuing and thereafter until notified by the Agent that it intends to foreclose or otherwise realize upon such Collateral, each Debtor may use and lease its Collateral to the extent not prohibited by the terms of the Credit Agreement or the Term Loan Agreement (including, without limitation, Section 7.14 of each such agreement), and (ii) until an Event of Default has occurred and is continuing, the Debtor may sell or otherwise dispose of Collateral to the extent not prohibited by the terms of the Credit Agreement or the Term Loan Agreement (including, without limitation, Sections 7.14 and 7.15 of each such agreement), and may grant liens on Collateral to the extent permitted by Sections 4.1 and/or 7.11 of the Credit Agreement and the Term Loan Agreement, provided that a sale, lease or other disposition in the ordinary course of business shall not under any circumstance include a transfer, sale or lease in satisfaction, partial or complete, of a debt owing by such Debtor unless the debt so satisfied is secured with a lien on or ownership right in the goods in question which is prior to the security interest of the Agent therein and is a Permitted Encumbrance under the Credit Agreement and the Term Loan Agreement.
(d) Each Debtor shall at all times insure the Collateral consisting of tangible personal property against such risks and hazards as other persons or entities similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Agent may reasonably specify, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent and the Secured Creditors as additional insureds therein) and by insurers reasonably acceptable to the Agent, it being agreed that the foregoing shall not preclude any Debtor from directly or indirectly self insuring risks as and to the extent prudent and customary for companies similarly situated and then to the extent permitted by the Credit Agreement and the Term Loan Agreement. All premiums on such insurance shall be paid by the Debtors and, upon the Agent’s request, the policies of such insurance (or certificates therefor) shall be delivered by the Debtors to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. Each Debtor may retain any proceeds of such insurance arising out of the loss, damage or destruction of the Collateral owned or leased by such Debtor so long as no Event of Default shall have occurred and be continuing or shall arise and be continuing after giving effect to such loss, damage or destruction. After the occurrence and during the continuance of any Event of Default, each Debtor will immediately pay over such proceeds of insurance to the Agent which shall thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefore, as the Agent may then determine and as otherwise provided for in the Intercreditor Agreement. All insurance proceeds shall be subject to the lien and security interest of the Agent in the Collateral. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuance of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, in such case as such Debtor’s attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance.
(e) Each Debtor shall, at all reasonable times upon reasonable prior notice, allow the Agent, any Secured Creditor, and their respective representatives free access to and right of inspection of the Collateral during such Debtor’s normal business hours. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right to verify all or any interest thereinpart of the Collateral in any manner, and through any medium, which the Agent considers appropriate, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(f) Each Debtor’s legal name and state of organization is correctly set forth in Schedule A attached hereto. No Debtor has transacted business at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Agent.
(g) Schedule C attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark rights, tradenames, patents, patent rights and licenses, patent applications and other intellectual property rights that are owned by the Debtors and are registered with any governmental authority. The relevant Debtor shall promptly notify the Agent in writing of any such additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C attached hereto to reflect such additional rights (provided such Debtor’s failure to do so shall not impair the Agent’s security interest therein). The Debtors own or possess rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights and licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct their business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Debtor is liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(h) Schedule E attached hereto contains a true, complete and current listing of all Commercial Tort Claims held or maintained by the Debtors as of the date hereof for an amount equal to or greater than $1,000,000, each described by reference to the specific incident giving rise to the applicable claim. Each Debtor agrees to execute and deliverdeliver to the Agent a supplement to this Agreement in the form attached hereto as Schedule F, and shall cause or in such other form reasonably acceptable to the Intermediary Agent, promptly upon becoming aware of any other Commercial Tort Claim in an amount equal to or greater than $1,000,000 held or maintained by any Debtor arising after the date hereof.
(i) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunderof the Agent in the Collateral granted hereby, including, without limitation, a Securities Account Control Agreement executed by (i) the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form execution and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and delivery of such financing statements, statements and amendments thereof and supplements thereto or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, (ii) the execution and delivery of such patent, trademark and copyright assignment agreements as the 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) the execution and delivery of and the use of commercially reasonable efforts to cause the relevant depository institutions, financial intermediaries and letter of credit issuers to execute and deliver such control agreements with respect to all Deposit Accounts, Securities Accounts, Letter-of-Credit Rights and electronic Chattel Paper as the Agent may from time to time reasonably require in order to comply accordance with the UCCterms hereof. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided, however, that prior to the occurrence of any Event of Default the Debtors shall not have any obligation to reimburse the Agent for the reasonable costs and expenses of more than one lien search during any calendar year. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hj) On Upon the occurrence and during the continuance of any Event of Default, on failure of the any Debtor to perform any of the its covenants and agreements herein contained, the Secured Party may, Agent may at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, option perform the same and in so doing may expend such sums as the Secured Party Agent may reasonably deem advisable in the performance thereof, including, without limitation, the (i) payment of any insurance premiums, (ii) payment of any taxes, liens and encumbrances, (iii) expenditures made in defending against any adverse claims, claims and (iv) all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party Agent may make by agreement or otherwise for the protection of the security hereofCollateral. All such sums and amounts so expended shall be repayable by the such Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding equal to the sum of 2% to plus the rate per annum Domestic Rate as from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect (with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Domestic Rate to be effective on the date of such change in said prime commercial rateDomestic Rate) (such rate per annum as so determined being hereinafter referred to as the “Reimbursement Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the any Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/the Agent or any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the Secured Party Agent for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Emcor Group Inc)
Covenants, Agreements, Representations and Warranties. The Debtor Guarantor hereby covenants and agrees with, and represents and warrants to, the Secured Party Lender that:
(a) The Debtor is the sole and lawful owner Each of the Collateralrepresentations, warranties and covenants made by the Guarantor and contained in the Loan Agreement are deemed repeated herein, for the benefit of the Lender, and has full right, power and authority to enter into this Agreement and to perform each and all of shall be read as the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereundercontext requires.
(b) The Debtorthe Guarantor’s principal residence chief executive office is at 1▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇ (▇▇ ▇) ▇▇▇▇▇; ▇, ▇▇▇ ▇▇▇ and the Debtor Guarantor has no other residences (exclusive executive offices or places of vacation homes)business. The Debtor Collateral is and shall remain in the Guarantor’s possession or control at such location (the “Permitted Collateral Location”), except for Collateral which in the ordinary course of the Guarantor’s business is sold or in transit to any customer of the Guarantor. The Guarantor shall not move its principal residence chief executive office or maintain a residence place of business at another location or permit any Collateral to be located at a location other than those specified on Schedule Athe Permitted Collateral Location, in each case without first providing the Secured Party Lender at least 30 days’ days prior written notice of the DebtorGuarantor’s intent to do so; provided that the Debtor Guarantor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Location in the United States of America and, with respect to any new location, or Canada and the Debtor shall have Guarantor has taken all action reasonably requested by the Secured Party Lender to maintain the lien and security interest of the Secured Party Lender in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtorthe Guarantor’s legal name name, jurisdiction of organization and organizational number (if any) is correctly set forth in the first paragraph Preamble of this Agreement. The Debtor Guarantor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth in the Preamble. The Debtor Guarantor shall not change its jurisdiction of organization without the Lender’s prior written consent. The Guarantor shall not change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyLender.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor Guarantor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyLender.
(e) The Debtor shall promptly pay when due all taxes, assessments the Guarantor will strictly comply with every covenant and governmental charges and levies upon undertaking heretofore or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and hereafter given by it to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, Lender and the Debtor shall have established adequate reserves thereforLender (and any one or more of them), whether contained herein or not.
(f) Subject to Section 4 hereof, without the Secured Party’s prior written consent, Guarantor agrees it will hold the Debtor shall not, nor shall it permit proceeds received from any direct or indirect dealing with the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, or otherwise dispose Collateral in trust for the Lender after any of the Collateral or any part thereof or any interest thereinis sold other than in the ordinary course of business of the Guarantor and for the purpose of carrying on such business.
(g) the Guarantor will notify the Lender of any loss or damage to the Collateral exceeding $10,000 per occurrence or $50,000 in the aggregate in any fiscal year, any change in any information provided in this Agreement (including the Schedules hereto) or any actual or potential claim affecting the Guarantor, the Collateral or the security interest of the Lender in the Collateral.
(h) the Guarantor will at all times allow the Lender and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Lender may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Guarantor and without undue interference with the Guarantor’s operations or affairs.
(i) the Guarantor will preserve the Guarantor’s rights, powers, licenses, privileges, franchises and goodwill, comply with all applicable laws, regulations and orders (including environmental laws, regulations and orders), leases, easements and other agreements affecting the Guarantor or the Collateral and conduct its business in a proper and efficient manner so as to protect the Collateral, the security interest of the Lender therein and the business and undertaking of the Guarantor, in each case, to the extent required by the Loan Agreement.
(j) Schedule A attached hereto 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 Guarantor as of the date hereof that are registered with any governmental authority. The Debtor Guarantors shall promptly notify the Lender in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Lender a supplement to Schedule A to reflect such additional rights (provided the Guarantor’s failure to do so shall not impair the Lender’s security interest therein). the Guarantor owns or possesses rights to use all franchises, licenses, patents, trademarks, trade names, tradestyles, copyrights, and rights with respect to the foregoing which are required to conduct its business. To the Guarantor’ knowledge, no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and, to the Guarantor’s knowledge, the Guarantor are not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(k) the Guarantor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Lender such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Lender may reasonably deem necessary or appropriate to assure the Secured Party Lender its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Lender may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law, (ii) such agreements with respect to patents, trademarks, copyrights, and similar intellectual property rights as the Lender 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, Investment Property, Letter-of-Credit Rights, and electronic Chattel Paper, and, subject to Section 8(d) hereof, to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as the Lender may from time to time reasonably require. The Debtor the Guarantor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Lender without notice thereof to the Debtor Guarantor wherever the Secured Party Lender in its sole discretion desires to file the same. The Debtor the Guarantor hereby authorizes the Secured Party Lender to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Lender may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Lender may order lien searches from time to time against the Guarantor and the Collateral, and the Guarantor shall promptly reimburse the Lender for all reasonable costs and expenses incurred in connection with such lien searches. In the event for any reason the law of any jurisdiction other than Illinois Nevada becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the Debtor Guarantor agrees to execute and deliver all such instruments agreements, assignments, instruments, and documents and to do all such other things as the Secured Party in its sole discretion Lender deems necessary or appropriate to preserve, protect protect, and enforce the lien and security interest of the Secured Party Lender under the law of such other jurisdiction.
(hl) On failure of the Debtor Guarantor to perform any of the covenants and agreements herein contained, the Secured Party Lender may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem Lender deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party Lender may be compelled to make by operation of law or which the Secured Party Lender 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 Debtor immediately without notice or Guarantor upon demand, shall constitute additional Secured Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 365 days for the actual number of days elapsed) determined by adding 2% equal to the highest rate then applicable to the Loan Agreement plus six per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in cent (6%) (such rate per annum as so determined by reason of a change in such prime commercial rate being hereinafter referred to be effective on as the date of such change in said prime commercial rate“Default Rate”). No such performance of any covenant or agreement by the Secured Party Lender on behalf of the Debtora Guarantor, and no such advancement or expenditure therefor, shall relieve the Debtor Guarantor of any default under the terms of this Agreement or in any way obligate the/Secured Party the Lender to take any further or future action with respect thereto. The Secured PartyLender, in making any payment hereby authorized, may do so according to any b▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured PartyLender, in performing any act hereunder, shall be the sole judge of whether the Debtor Guarantor is required to perform the same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and the such Debtor has no other residences executive offices or places of business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name (exclusive of vacation homescollectively for each Debtor, the “Permitted Collateral Locations”). If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect unless specifically agreed to any new location, in writing by the Agent and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effecteffect (at which time Schedule A hereof shall be deemed amended to include each such additional Permitted Collateral Location, and the Debtors agree to furnish to the Agent from time to time upon its reasonable request an updated Schedule A listing all such Permitted Collateral Locations).
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization, its legal name or transact business under any other trade name without first giving 30 days’ (or such lesser period as may be agreed to by the Agent) prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens Liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest Lien of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due agrees it will not use, manufacture, sell or distribute any Collateral in violation in any material respect of any statute, ordinance or other governmental requirement. Each Debtor will perform in all taxes, assessments and governmental charges and levies upon material respects its obligations under any contract or against the Debtor or any other agreement constituting part of the Collateral, in each case before the same become delinquent it being understood and before penalties accrue thereon, unless and to the extent agreed that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall Secured Creditors have established adequate reserves thereforno responsibility to perform such obligations.
(f) Subject to the terms and conditions of Section 4 hereof8.4 of the Credit Agreement, without each Debtor shall insure and keep insured with good and responsible insurance companies, all insurable Collateral owned by it which is of a character usually insured by Persons similarly situated and operating like Collateral against loss or damage from such hazards and risks, and in such amounts, as are insured by Persons similarly situated and operating like Collateral. All premiums on such insurance shall be paid by the Secured Party’s prior written consentDebtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall notpromptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, nor damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall it permit be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Intermediary toCollateral so lost, investdamaged or destroyed, purchaseexcept to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. Each Debtor hereby authorizes the Agent, sellat the Agent’s option, exchangeto adjust, redeemcompromise, reinvestand settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, assignand such Debtor does hereby irrevocably constitute the Agent, or otherwise dispose its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent after the occurrence and during the continuation of any Event of Default. All insurance proceeds shall be subject to the lien and security interest thereinof the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(g) Pursuant to Section 8.6 of the Credit Agreement, each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(h) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify.
(i) Each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(j) Each Debtor will comply with the terms and conditions of any and all leases, easements, right-of-way agreements, and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon, except to the extent failure to comply would not reasonably be expected to have a Material Adverse Effect.
(k) Schedule D attached hereto contains a true, complete and current listing of all Commercial Tort Claims in excess of $1,000,000 held by the Debtors as of the date hereof, each described by referring to a specific incident giving rise to the claim. Each Debtor agrees to execute and deliverdeliver to the Agent an agreement in the form attached hereto as Schedule D, and or in such other form reasonably acceptable to the Agent, promptly upon becoming aware of any Commercial Tort Claim in excess of $1,000,000 of such Debtor arising after the date hereof (provided any Debtor’s failure to do so shall cause not impair the Intermediary Agent’s security interest therein).
(l) Each Debtor agrees to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require to comply with the UCC and any other applicable law, and (ii) such control agreements with respect to Deposit Accounts, Investment Property, and electronic Chattel Paper, and to cause the relevant depository institutions, financial intermediaries, and issuers to execute and deliver such control agreements, as the Agent may from time to time reasonably require in order to comply accordance with the UCCCredit Agreement. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Agent without notice thereof to the such Debtor wherever the Secured Party Agent in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches; provided so long as no Default exists, the Debtors shall not be required to reimburse the Agent for such lien searches ordered more than once during each calendar year. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the each Debtor agrees to execute and deliver all such instruments agreements, assignments, instruments, and documents and to do all such other things as the Secured Party in its sole discretion Agent deems reasonably necessary or appropriate to preserve, protect protect, and enforce the security interest of the Agent under the law of such other jurisdiction. Each Debtor agrees to ▇▇▇▇ its books and records to reflect the lien and security interest of the Secured Party under Agent in the law of such other jurisdictionCollateral.
(hm) On failure of the any Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or Debtors upon demand, shall constitute additional Secured Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days for the actual number of days elapsed) determined by adding 22.0% per annum to the rate per annum Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin from time to time in effect for Base Rate Loans under the Revolving Facility, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Base Rate to be effective on the date of such change in said prime commercial rateBase Rate (such rate per annum as so determined being hereinafter referred to as the “Default Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured PartyAgent, in making any payment hereby authorized, may do so according to any b▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured PartyAgent, 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. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the any Secured Party Creditor for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Envestnet, Inc.)
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization, is the sole and lawful owner of the Collateral, Collateral granted by it hereunder and has full right, the power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein Each Debtor's Federal tax identification number is set forth, will not (i) contravene or constitute a default forth under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance its name under Column 1 on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.Schedule A.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor's name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name (collectively for each Debtor, the "Permitted Collateral Locations"), except for (i) Collateral which in the ordinary course of such Debtor's business is in transit between Permitted Collateral Locations and (ii) Collateral aggregating less than $1,000,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s 's intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 10.12 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the "Permitted Liens"). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(ed) The Each Debtor shall will promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any Lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(f) Subject to Sections 4(d), 5(a), 6(b), 6(c), and 7(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof10.14 thereof), each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course. Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $10,000,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder.
(h) Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor and without unreasonable interference with the Debtor's conduct of its business in the ordinary course.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allowing the removal of such Collateral by the Agent or its agents or representatives and otherwise in form and substance reasonably acceptable to the Agent; provided, however, that no such agreement need be obtained with respect to any one location wherein the value of such Collateral as to which such agreement has not been obtained aggregates less than $1,000,000 at any one time.
(j) Upon the Agent's reasonable request, each Debtor agrees from time to time to deliver to the Agent such evidence of the existence, identity and location of its Collateral and of its availability as collateral security pursuant hereto, in each case as such Secured Creditor may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may require in connection therewith.
(k) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(l) Since the date occurring five (5) years prior to the date hereof, no Debtor has invoiced Receivables or otherwise transacted business, and does not invoice Receivables or otherwise transact business, under any trade names other than its name set forth on its signature page to this Agreement or names containing "Titan Wheel" or names (which are no longer used) associated with any immaterial, discontinued businesses or as otherwise set forth on Schedule B hereto. Each Debtor agrees it will not change its name or transact business under any other trade name, in each case without first giving the Agent at least 30 days prior written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and executing such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law. The Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement or effective financing statement by the Secured Party Agent without prior notice thereof to the such Debtor wherever the Secured Party in its sole discretion desires Agent deems necessary or desirable to file perfect or protect the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requiresecurity interest granted hereby. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the each Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion Agent deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Agent under the law of such other jurisdiction.
(hn) On failure of the a Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem 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 the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 such Debtor immediately without notice or upon demand, shall constitute additional Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the of 360 days and actual number of days elapsed) determined by adding 2% to the rate per annum Domestic Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin for Domestic Rate Loans under the Revolving Credit, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Domestic Rate to be effective on the date of such change in said prime commercial rateDomestic Rate (such rate per annum as so determined being hereinafter referred to as the "Default Rate"). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured Party, Agent in making any payment hereby authorized, authorized may do so according to any bbill, ▇▇▇, statement atement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bbill, ▇▇▇, statement atement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, Agent in performing any act hereunder, hereunder shall be the sole judge of whether the relevant Debtor is required to perform the same under the terms of this Agreement. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the any Secured Party Creditor for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Titan International Inc)
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g., charter, articles or certificate of incorporation and bylaws, articles or certificate of formation or organization and limited liability company operating agreement, partnership agreement or similar organizational documents) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and as of the date hereof such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name and in the case of Collateral consisting of Deposit Accounts, in the accounts set forth in Part C of Exhibit E attached hereto (collectively for each Debtor, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of the Debtor’s business is in transit between Permitted Collateral Locations and (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days prior written notice of the Debtor’s intent to do so; provided that unless the Agent and the Required Lenders otherwise consent, each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new location, the and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all respects its obligations under any contract or other agreement constituting part of the Collateral except where the failure to so perform could not reasonably be expected to have a Material Adverse Effect, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(c), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) The Each Debtor agrees will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit (other than as a result of common carriage), in amounts and under policies containing loss payable clauses to execute the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and deliverthe policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may be reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such Agent in all other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requirerespects. In the event for any reason the law case of any jurisdiction other than Illinois becomes material loss, damage to or is applicable to destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance in an amount exceeding $250,000 in the aggregate for all Debtors with respect to any event or occurrence, such Debtor shall notify the Agent and, subject to the terms of the ObligationsCredit Agreement, immediately pay over such proceeds of insurance to the Debtor Agent which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) or held as collateral security therefor, as provided for in the Credit Agreement; provided, however, that the Agent agrees to execute release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) the relevant Debtor has requested that the Agent so release such insurance proceeds, and deliver all (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored to substantially its condition immediately prior to the loss, destruction or other event giving rise to the payment of such instruments insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and documents settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do all everything necessary to carry out such other things purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the Secured Party relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in its sole discretion deems necessary or appropriate the case of losses exceeding $250,000. All insurance proceeds shall be subject to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein containedAgent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, the Secured Party mayTHE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, at its optionBUT NEED NOT, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.PROTECT ANY DEBTOR’S INTERESTS IN THE
Appears in 1 contract
Sources: Security Agreement (Nobel Learning Communities Inc)
Covenants, Agreements, Representations and Warranties. The Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party that:
(a) The Debtor is the sole and lawful owner of the Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Debtor’s principal residence is at 18▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes). The Debtor shall not move its principal residence or maintain a residence at a location other than those specified on Schedule A, in each case without first providing the Secured Party 30 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the Collateral, and the Debtor shall have established adequate reserves therefor.
(f) Subject to Section 4 hereof, without the Secured Party’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchange, redeem, reinvest, assign, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(g) The Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/the Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The As of the date hereof, each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes)location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations identified on Schedule A-1 (collectively with any “Permitted New Collateral Locations” as defined below, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of the Debtor’s business is in transit to or between Permitted Collateral Locations, and (ii) Collateral aggregating less than $10,000,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence or maintain a residence chief executive office at a location other than those specified under Column 2 on Schedule AA or permit any Collateral (other than Collateral aggregating less than $10,000,000 in fair market value outstanding at any one time) to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party 30 days’ Agent at least 5 days prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new location, the and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect. To the extent that the relevant Debtor has taken all actions reasonably requested by the Agent to maintain the lien and security interest of the Agent in the Collateral at all times fully perfected and in full force and effect in respect of any location at which Collateral will be located, then such location (a “New Permitted Collateral Location”) shall thereafter be deemed to be a Permitted Collateral Location.
(c) The As of the date hereof, each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without giving the Agent 30 days prior written notice of such change, provided that no Debtor shall change its jurisdiction of organization to a jurisdiction other than the United States of America, any State of the United States of America or the District of Columbia without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors, except for (i) such claims and demands against Collateral that individually or in the aggregate has a fair market value of less than $10,000,000, and (ii) claims and demands against Collateral or any portion thereof involving disputes which are in an amount which is less than $10,000,000.
(e) The Each Debtor shall will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees that the use, manufacture, sale and distribution of the Collateral will be in material compliance with all applicable statutes, ordinances and other governmental requirements. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral under which the payment obligations owing to the Debtors exceed $10,000,000 at any time, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Section 4 hereofSections 5(c), 6(a), 7(b) and 7(c) hereof and the terms of the Credit Agreement (including, without limitation, Sections 8.8 and 8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) The Each Debtor will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insured therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In the event any Debtor or the Agent shall receive any proceeds of insurance on any Collateral in an aggregate amount in excess of $10,000,000, such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) but without any reduction in the Lenders’ commitments to extend credit under the Credit Agreement. In the event any Debtor or the Agent shall receive any proceeds of insurance on any Collateral in an aggregate amount that is less than $10,000,000, such Debtor shall be entitled to retain such proceeds so long as no Event of Default shall have occurred and be continuing, provided that if an Event of Default shall have occurred and be continuing such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Secured Obligations as provided in the Credit Agreement. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $10,000,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s request, use reasonable efforts to cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent’s request during the existence of an Event of Default, each Debtor agrees from time to time to deliver to the 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 by major category and location), in each case as the Agent may reasonably request. During the existence of an Event of Default, the Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent in good faith considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(k) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by such control agreements with respect to electronic Chattel Paper, and to cause the Intermediary substantially in the form attached hereto as Schedule B or relevant issuers to execute and deliver such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreementagreements, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCCrequire. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the each Debtor agrees to execute and deliver all such instruments agreements, assignments, instruments, and documents and to do all such other things as the Secured Party in its sole discretion Agent deems necessary or appropriate to preserve, protect protect, and enforce the security interest of the Agent under the law of such other jurisdiction. Each Debtor agrees to ▇▇▇▇ its books and records to reflect the lien and security interest of the Secured Party under Agent in the law of such other jurisdictionCollateral.
(hl) On failure of the any Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or Debtors upon demand, shall constitute additional Secured Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days for the actual number of days elapsed) determined by adding 22.0% per annum to the rate per annum Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin from time to time in effect for Base Rate Loans under the Revolving Credit, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Base Rate to be effective on the date of such change in said prime commercial rateBase Rate (such rate per annum as so determined being hereinafter referred to as the “Default Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured PartyAgent, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.ma
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture or agreement of or affecting the Debtor or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences (exclusive of vacation homes)location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations identified on Schedule A-1 (collectively for each Debtor, the “Permitted Collateral Locations”), except for Collateral which in the ordinary course of the Debtor’s business is in transit to or between Permitted Collateral Locations. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party 30 days’ Agent at least 5 days prior written notice of the Debtor’s intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new location, the and such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees that the use, manufacture, sale and distribution of the Collateral will be in material compliance with all applicable statutes, ordinances and other governmental requirements. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Section 4 hereofSections 5(c), 6(a), 7(b) and 7(c) hereof and the terms of the Credit Agreement (including, without limitation, Sections 8.8 and 8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) Each Debtor will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insured therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In the event any Debtor shall receive any proceeds of such insurance, such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) or held as collateral security therefor, as the Agent may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Event of Default exists, (ii) written application for such release is received by the Agent from the relevant Debtor within 30 days of the receipt of such proceeds, and (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $5,000,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent’s request, each Debtor agrees from time to time to deliver to the 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 by major category and location), in each case as the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent in good faith considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(k) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments instruments, and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCCUCC and any other applicable law and (ii) such control agreements with respect to electronic Chattel Paper, and to cause the relevant issuers to execute and deliver such control agreements, as the Agent may from time to time reasonably require. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Each Debtor hereby authorizes the Secured Party Agent to file any and all financing statements covering the Collateral or any part thereof as the Secured Party Agent may require. The Agent may order lien searches from time to time against any Debtor and the Collateral, and the Debtors shall promptly reimburse the Agent for all reasonable costs and expenses incurred in connection with such lien searches. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the each Debtor agrees to execute and deliver all such instruments agreements, assignments, instruments, and documents and to do all such other things as the Secured Party in its sole discretion Agent deems necessary or appropriate to preserve, protect protect, and enforce the security interest of the Agent under the law of such other jurisdiction. Each Debtor agrees to ▇▇▇▇ its books and records to reflect the lien and security interest of the Secured Party under Agent in the law of such other jurisdictionCollateral.
(hl) On failure of the any Debtor to perform any of the covenants and agreements herein contained, the Secured Party Agent may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem Agent deems advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, liens liens, and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party Agent may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or Debtors upon demand, shall constitute additional Secured Obligations secured hereunder hereunder, and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year of 360 days for the actual number of days elapsed) determined by adding 22.0% per annum to the rate per annum Base Rate from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate in effect plus the Applicable Margin from time to time in effect for Base Rate Loans under the Revolving Credit, with any change in such rate per annum as so determined by reason of a change in such prime commercial rate Base Rate to be effective on the date of such change in said prime commercial rateBase Rate (such rate per annum as so determined being hereinafter referred to as the “Default Rate”). No such performance of any covenant or agreement by the Secured Party Agent on behalf of the a Debtor, and no such advancement or expenditure therefor, shall relieve the any Debtor of any default under the terms of this Agreement or in any way obligate the/any Secured Party Creditor to take any further or future action with respect thereto. The Secured PartyAgent, in making any payment hereby authorized, may do so according to any b▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured PartyAgent, 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. The Secured Party Agent is hereby authorized to charge any depository or other account of the any Debtor maintained with the any Secured Party Creditor for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Each Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the any Debtor or any provision of the any Debtor’s trust organizational documents (e.g., charter, articles or certificate of incorporation and bylaws, articles or certificate of formation or organization and limited liability company operating agreement, partnership agreement or similar organizational documents) or any covenant, indenture or agreement of or affecting the any Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor’s name; and as of the date hereof such Debtor has no other residences executive offices or places of business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor’s name. The Collateral is and shall remain in such Debtor’s possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor’s name and in the case of Collateral consisting of Deposit Accounts, in the accounts set forth in Part C of Exhibit E attached hereto (exclusive collectively for each Debtor, the “Permitted Collateral Locations”), except for (i) Collateral which in the ordinary course of vacation homes)the Debtor’s business is in transit between Permitted Collateral Locations and (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall continue to own the Permitted Collateral Locations except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. The Debtor shall not promptly notify the Agent in writing of any additional collateral locations acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule A to reflect such additional Permitted Collateral Locations. No Debtor shall move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ days (or such shorter period of time as agreed to by the Agent) prior written notice of the Debtor’s intent to do so; provided that that, except in the case of foreign subsidiary organized in Canada or unless the Agent and the Required Lenders otherwise consent, each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America andAmerica. Furthermore, with respect to any new location, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s legal name is name, jurisdiction of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its jurisdiction of organization without the Agent’s prior written consent. No Debtor shall change its legal name or transact business under any other trade name without first giving 30 days’ prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics’, laborers’ and statutory liens), attachments, levies levies, and encumbrances of every kind, nature nature, and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Credit Agreement (as hereinafter definedherein, the “Permitted Liens”). The Each Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall will promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent attachment of any lien resulting therefrom to, foreclosure on or other realization upon any Collateral and preclude interference with the operation of its business in the Collateral, ordinary course and the such Debtor shall have established adequate reserves therefor.
(f) Each Debtor agrees it will not waste or destroy the Collateral or any part thereof and will not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all respects its obligations under any contract or other agreement constituting part of the Collateral except where the failure to so perform could not reasonably be expected to have a Material Adverse Effect, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(c), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured PartyAgent’s prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) The Each Debtor agrees will insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit (other than as a result of common carriage), in amounts and under policies containing lender’s loss payable clauses to execute the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and deliverthe policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall cause the Intermediary to execute and deliver, to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may be reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and such financing statements, and amendments thereof or supplements thereto, and such Agent in all other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may requirerespects. In the event for any reason the law case of any jurisdiction other than Illinois becomes material loss, damage to or is applicable to destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor’s cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor’s business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance in an amount exceeding $500,000 in the aggregate for all Debtors with respect to any event or occurrence, such Debtor shall notify the Agent and, subject to the terms of the ObligationsCredit Agreement, immediately pay over such proceeds of insurance to the Debtor Agent which will thereafter be applied to the reduction of the Secured Obligations (whether or not then due) or held as collateral security therefor, as provided for in the Credit Agreement; provided, however, that the Agent agrees to execute release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) the relevant Debtor has requested that the Agent so release such insurance proceeds, and deliver all (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged or destroyed has been or will be replaced or restored to substantially its condition immediately prior to the loss, destruction or other event giving rise to the payment of such instruments insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent’s option, to adjust, compromise, and documents settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents, and attorneys, as such Debtor’s attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise, and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do all everything necessary to carry out such other things purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise, and/or settlement of any losses under any insurance shall be made by the Secured Party relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in its sole discretion deems necessary or appropriate the case of losses exceeding $500,000. All insurance proceeds shall be subject to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdictionAgent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS’ EXPENSE TO PROTECT THE AGENT’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(hi) On failure Subject to the terms of the Credit Agreement, each Debtor will at all times allow the Secured Creditors and their respective representatives free access to perform and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(j) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent’s lien and security interest therein and instruct them to hold all such Collateral for the Agent’s account and subject to the Agent’s instructions. Each Debtor will, upon the reasonable request of the 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 Creditors and their respective representatives to examine and inspect any of the covenants Collateral then in such party’s possession and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that to verify from such party’s own books and records any information concerning the Collateral or its any part thereof which the Secured Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent’s reasonable request, use good faith efforts to cause each party having any right, title or interest therein will be harmed in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title, and interest in and lien on the Collateral, allows the removal of such Collateral by the giving Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(k) Upon the Agent’s reasonable request, each Debtor agrees from time to time to deliver to the Agent such evidence of such noticethe existence, perform the same identity, and in so doing may expend such sums location of its Collateral and of its availability as the Secured Party may reasonably deem advisable in the performance thereof, collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by such Debtor, copies of customer invoices or the payment 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(l) Each Debtor will comply in all material respects with the terms and conditions of any taxesand all leases, liens and encumbranceseasements, expenditures made in defending against any adverse claimsright-of-way agreements, and all other expenditures agreements binding upon such Debtor or affecting the Collateral, in each case which cover the Secured Party may premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon, in each case where the failure to so comply could reasonably be compelled expected to make by operation cause an Event of law Default or which result in the Secured Party may make by agreement or otherwise for the protection creation of a Lien on a material portion of the security Collateral.
(m) Schedule C attached hereto 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 date hereof that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof. All such sums and amounts so expended shall be repayable by the Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% submit to the rate per annum from time Agent a supplement to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate with Schedule C to reflect such additional rights (provided any change in such rate per annum as so determined by reason of a change in such prime commercial rate Debtor’s failure to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Sources: Security Agreement (Nobel Learning Communities Inc)
Covenants, Agreements, Representations and Warranties. The Debtor Company hereby covenants and agrees with, and represents and warrants to, the Secured Party Collateral Agent, the Agent, the Banks and the Noteholders that:
(a) The Debtor is the sole and lawful owner of the Collateral, and has full right, power and authority to enter into this Agreement Unless and to perform each the extent the Collateral Agent shall otherwise consent in writing, the Collateral is and all of will remain in the matters and things herein provided for. The execution and delivery of this AgreementAccounts or in the Company's possession or control or deemed to be located under the Code at the locations listed under Item A on Schedule B in the form attached hereto, and or as Schedule B may hereafter be amended or modified by instrument in writing delivered to the observance and performance of each of Collateral Agent (collectively the matters and things herein set forth"Permitted Collateral Locations"), will not except for (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon Collateral which in the Debtor or any provision ordinary course of the Debtor’s trust agreement or any covenantCompany's business as presently conducted is in transit between the Permitted Collateral Locations, indenture or agreement of or affecting the Debtor or (ii) result Inventory which in the creation or imposition of any lien or encumbrance on any property ordinary course of the Debtor except Company's business as presently conducted is being shipped to customers of the Company or is in the possession of customers of the Company pursuant to a lease or rental arrangement between such customer and the Company, and (iii) Inventory in transit to the Company at a Permitted Collateral Location from the supplier of such items. The Company shall not hold Cash in any depository account other than the Accounts and any other accounts of which the Company has given the Collateral Agent written notice pursuant to periodic updates made by the Company at the Collateral Agent's request. Upon the occurrence of an Event of Default hereunder and upon the request of the Collateral Agent, the Company shall execute an Account Letter Agreement covering such depository account(s) substantially in the form of Exhibit 1 attached hereto and such Account Letter Agreement shall be acknowledged and agreed to by the subject bank; provided that, on or prior to the effective date hereof, the Company shall execute and deliver an Account Letter Agreement acknowledged and agreed to by the Collateral Agent covering the concentration account No. 12331-13468 of the Company maintained with BofA. If for any reason Collateral is at any time kept or located at locations other than those permitted by the lien foregoing, the Collateral Agent shall nevertheless have and retain a security interest granted to therein. As indicated on Schedule B, the Secured Party hereunder.
(b) The Debtor’s principal residence Company owns or leases and will own or lease all the Permitted Collateral Locations. As of the date hereof, the Company's chief executive office and chief place of business is at 1▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇ and the Debtor Company has no other residences (exclusive places of vacation homes). business other than those listed on said Schedule B. The Debtor shall Company will not move maintain its principal residence chief executive office or maintain a residence places of business at a any location other than those specified on Schedule A, in each case pursuant to the immediately preceding sentence without first providing the Secured Party 30 Collateral Agent 60 days’ prior written notice of the Debtor’s intent to do so; provided that the Debtor shall at all times maintain its principal residence in the United States of America and, with respect to any new location, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period. The Debtor shall not change its legal name or transact business under any trade name without first giving 30 days’ ' prior written notice of its intent to do so to so; provided, however, that such notice shall not be deemed effective until the Secured PartyCollateral Agent has acknowledged receipt thereof; provided, further, that the Company will at all times maintain its chief executive office in the State of California.
(db) The Collateral and every part thereof is and shall will be free and clear of all security interests, liens (includingincluding without limitation mechanics', without limitation, laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Collateral Agent therein and liens permitted under the Credit Agreement and Note Agreements (ii) collectively the rights of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined"Permitted Liens"). The Debtor shall Company will warrant and defend the Collateral against any claims and demands (other than the Permitted Liens) of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured PartyCollateral Agent.
(ec) The Debtor shall Company will pay promptly pay when due all taxes, assessments assessments, and governmental charges and levies upon or against the Debtor or any of the Collateral, Collateral in each case before the same become delinquent and before penalties accrue thereon, unless and to (1) the extent that the same are validity, applicability or amount thereof is being contested in good faith by appropriate actions or proceedings which will prevent foreclosure the forfeiture or sale of such Collateral or any material interference with the use thereof by the Company and (2) the Company shall have set aside on its books, reserves deemed by it to be adequate with respect thereto in accordance with and as required by GAAP.
(d) The Company will not waste or destroy the Collateral or any part thereof and will not be negligent in the care and use of any Collateral. The Company will not use, sell, lease, rent or distribute any Collateral in violation of any statute, ordinance or other realization upon governmental requirement. The Company will perform in all material respects its obligations under any contract or other agreement constituting a part of the Collateral, it being understood and agreed that the Collateral Agent, the Agent, the Banks and the Debtor shall Noteholders have established adequate reserves thereforno responsibility to perform such obligations.
(e) Subject to (S)(S)(a), 6(b) and 6(c) hereof and except as permitted by the Credit Agreement and Note Agreements, the Company will not, without the Collateral Agent's prior written consent, sell, assign, mortgage, lease or otherwise dispose of or otherwise permit a Lien to exist on the Collateral or any interest therein.
(f) Subject The Company will insure the Collateral which is insurable against such risks and hazards as other companies similarly situated insure against, and including in any event commercial general and commercial liability insurance and such other coverage as the Collateral Agent may reasonably specify, in amounts and under policies written by companies of recognized national standing which are authorized to Section 4 hereofdo business in the state in which the Collateral is located, without and which are otherwise acceptable to the Secured Party’s prior written consentCollateral Agent, provided that the Company shall be permitted to self-insure in a commercially reasonable manner consistent with its current practices so long as adequate reserves with respect thereto are maintained. All premiums on third party insurance shall be paid by the Company and the policies of such insurance (or certificates therefor) delivered to the Collateral Agent.
(1) shall contain loss payable clauses to the Collateral Agent as its interest may appear (and, if the Collateral Agent requests, naming the Collateral Agent, the Debtor Agent, the Banks and the Noteholders as additional insureds therein), (2) in the case of policies covering loss or damage to the Collateral, shall notprovide that losses, if any, shall be payable solely to the Collateral Agent under a standard loss payable clause satisfactory to the Collateral Agent, (3) shall provide that the Collateral Agent's, the Agent's, the Banks' and the Noteholders' interests shall be insured regardless of any breach or violation by the Company of any warranties, declarations or conditions contained in such policies, (4) the insurers shall waive any right of subrogation of the insurers to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of any liability of the Company, (5) such insurance, as to the interest of the Collateral Agent and/or the Agent, the Banks and the Noteholders, as the case may be, therein, shall not be invalidated by the use or operation of the Collateral for purposes which are not permitted by such policies, nor shall it permit by any foreclosures or other proceedings relating to the Intermediary toCollateral, investnor by change in title to or ownership of the Collateral, purchase, sell, exchange, redeem, reinvest, assign(6) if any premium or installment is not paid when due, or otherwise dispose if such insurance would lapse or be cancelled, terminated or materially changed for any reason whatsoever, the insurers will promptly notify the Collateral Agent and any such lapse, cancellation, termination or change shall not be effective as to the Collateral Agent and/or the Agent, the Banks and the Noteholders, as the case may be, for 30 days after receipt of such notice, and (7) appropriate certification shall be made to the Collateral Agent by each insurer with respect thereto. The Company hereby authorizes the Collateral Agent, upon the occurrence and during the continuation of any Event of Default hereunder, at the Collateral Agent's option to adjust, compromise and settle any losses under any insurance afforded, and the Company does hereby irrevocably constitute the Collateral Agent, its officers, agents and attorneys, as its attorneys-in-fact, with full power and authority, upon the occurrence and during the continuation of any Event of Default hereunder, to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance; but unless the Collateral Agent elects to adjust, compromise or any interest thereinsettle losses as aforesaid, such adjustment, compromise and/or settlement shall be made by the Company, subject to final approval of the Collateral Agent in the case of losses exceeding $250,000.
(g) The Debtor Company will, upon reasonable notice, at all times allow the Collateral Agent, the Agent, the Banks and the Noteholders, or their respective representatives, free access to and right of inspection of the Collateral located on premises under the Company's control; provided, however, so long as no Event of Default hereunder exists and is continuing, any such access or inspection shall only be allowed during the Company's normal business hours. The Company will, upon request of the Collateral Agent, and then only to the extent it is within the Company's power so to do, authorize and instruct all bailees and any other parties at any time holding, storing, shipping, leasing or renting all or any part of the Collateral to permit the Collateral Agent or its designees 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 Collateral Agent may seek to verify. The Company shall have the right to accompany the Collateral Agent on any such examination or inspection. As to any premises not owned by the Company wherein any of the Collateral is located, the Company shall, upon the occurrence of an Event of Default hereunder and upon the request of the Collateral Agent, use its best efforts to cause each owner of such premises to enter into an agreement in form and substance satisfactory to the Collateral Agent subordinating any lien such owner may have by contract or under law with respect to such Collateral to the Lien of this Agreement, allowing the removal of such Collateral by the Collateral Agent and otherwise in form and substance reasonably acceptable to the Collateral Agent.
(h) The Company agrees from time to time to deliver to the Collateral Agent, the Agent, the Banks and any Noteholder such evidence (including copies) of the existence and identity of the Collateral and of its availability as collateral security pursuant hereto, as the Collateral Agent, the Agent, the Banks or such Noteholder may reasonably request.
(i) The Company will comply in all material respects with the terms and conditions of any leases, easements, right-of-way agreements or other agreements binding upon the Company or affecting the Collateral in each case which cover the premises owned, leased or otherwise controlled by the Company wherein the Collateral is located and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(j) The Company has not invoiced Receivables or otherwise transacted business, and does not invoice Receivables or otherwise transact business, under any trade names other than the Company's name set forth in the introductory paragraph of this Agreement and except for the invoicing of Receivables on invoices which contain one of the trade names listed on Schedule C attached hereto and made a part hereof, but which indicate such trade name to be a division of or trade name for the Company and so identify the Company by its correct corporate name. The Company will not change its name, or except as aforesaid, transact business under any trade name, in each case without first giving the Collateral Agent 30 days' prior written notice of its intent to do so, provided that in the case of any acquisition by the Company of any business entity or operation giving rise to the requirement to give notice to the Collateral Agent of the use of a new trade name pursuant to the foregoing, such notice shall be given to the Collateral Agent within 30 days following the date such acquisition is finalized.
(k) The Company represents that this Agreement creates a valid security interest in the Collateral securing payment and performance of the Secured Obligations and that all filings and other action necessary to perfect such security interest have been taken. The Collateral Agent agrees to prepare, and the Company agrees to cooperate with the Collateral Agent to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Collateral Agent, such further agreements, assignments, agreements and assignments or other instruments and documents and to do all such other things as the Secured Party may reasonably deem necessary or reasonably appropriate to assure the Secured Party Collateral Agent its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and including such financing statement or statements, and continuation statements or amendments thereof or supplements thereto, and such thereto or other instruments and documents as the Secured Party may from time to time reasonably require be required in order to comply with the UCCCalifornia Uniform Commercial Code and any successor statute(s) thereto (the "Code"). All such statements, amendments and supplements prepared by the Collateral Agent shall be presented to the Company for its signature and shall be timely filed by the Collateral Agent in all such places as are necessary to maintain the Collateral Agent's perfected security interest in the Collateral. The Debtor Company agrees to deliver to the Collateral Agent on August 1, 2000 an opinion of counsel, which opinion may be from internal counsel, in the State of California and each other state in which Collateral may be located pursuant to the terms of this Agreement, to the effect that this Agreement continues to create a valid security interest in the Collateral securing payment and performance of the Secured Obligations subject to the Permitted Liens and that all filings and other action necessary to perfect such security interest have been taken. Such opinion shall also set forth and describe any filings or other actions which may reasonably be expected to become necessary within the immediately succeeding twenty-four-month period to maintain perfection of such security interest. All such filings and actions shall be promptly made by the Company. The Company hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party Collateral Agent without notice thereof to the Debtor Company wherever the Secured Party Collateral Agent in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois California becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, the Debtor Company agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party Collateral Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party Collateral Agent as set forth herein under the law of such other jurisdiction.
(h) On failure jurisdiction to at least the same extent as such security interest would be protected under the Code. If any Collateral is in the possession or control of the Debtor to perform any of the covenants Company's agents or processors and agreements herein containedthe Collateral Agent so requests, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that Company agrees to notify such agents or processors in writing of the Collateral or its Agent's security interest therein will be harmed by and, upon the giving occurrence and continuance of an Event of Default hereunder and at the Collateral Agent's request, instruct all agents and processors in possession of Collateral to hold all such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party may make by agreement or otherwise Collateral for the protection of the security hereof. All such sums Collateral Agent's account and amounts so expended shall be repayable by the Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% subject to the rate per annum from time Collateral Agent's instructions. The Company agrees to time announced by H▇▇▇▇▇ Trust its books and Savings Bank as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.recor
Appears in 1 contract
Sources: Security Agreement (U S Rentals Inc)
Covenants, Agreements, Representations and Warranties. The Debtor hereby covenants and agrees with, and represents and warrants to, the Secured Party that:
(a) The Debtor is the sole and lawful owner of the Collateral, and has full right, power and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Debtor or any provision of the Debtor’s trust agreement 's articles of incorporation or by-laws or any covenant, indenture or agreement of or affecting the Debtor or any of its property or (ii) result in the creation or imposition of any lien or encumbrance on any property of the Debtor except for the lien and security interest granted to the Secured Party hereunder. The Debtor's Federal tax identification number is 36-3146167.
(b) The Debtor’s principal residence is at 1Debto▇▇▇'▇ ▇▇▇▇▇ executive office and principal place of business is at, and the Debtor keeps and shall keep all of its books and records relating to Receivables only at, 8745 West Higgins Road, Suite 300, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and the Debtor has no other residences executive offices or places of business other than those listed under Item 1 on Schedule A. The Collateral is and shall remain in the Debtor's possession or control at the locations listed under Item 2 on Schedule A attached hereto (exclusive of vacation homescollectively, the "Permitted Collateral Locations"). If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Secured Party shall nevertheless have and retain a lien on and security interest therein. The Debtor owns and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Item 2 on Schedule A. The Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Item 1 on Schedule A or permit the Collateral to be located at a location other than those specified under Item 2 on Schedule A, in each case without first providing the Secured Party 30 days’ ' prior written notice of the Debtor’s 's intent to do so; provided that the Debtor shall at all times maintain its principal residence chief executive office and, unless otherwise specifically agreed to in writing by the Secured Party, Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the Debtor shall have taken all action reasonably requested by the Secured Party to maintain the lien and security interest of the Secured Party in the Collateral at all times fully perfected and in full force and effect.
(c) The Debtor’s legal name is correctly set forth in the first paragraph of this Agreement. The Debtor has not had any different name, invoiced Receivables or otherwise transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently invoice Receivables or otherwise transact business, under any trade names other than the Debtor's name set forth in the introductory paragraph of this Agreement. The Debtor shall not change its legal name or transact business under any other trade name without first giving 30 days’ ' prior written notice of its intent to do so to the Secured Party.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party therein and (ii) as otherwise permitted by Section 8.10 of that certain Credit Agreement dated as of even date -5- herewith between the rights Borrower and the Secured Party, as the same may be amended or modified from time to time, including amendments and restatements of the Intermediary set forth same in its entirety (hereinafter, the Securities Account Control Agreement (as hereinafter defined"Credit Agreement"). The Debtor shall warrant and defend the Collateral against any claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to the Secured Party.
(e) The Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor or any of the Collateral, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any of the CollateralCollateral and preclude interference with the operation of the Debtor's business in the ordinary course, and the Debtor shall have established adequate reserves therefor.
(f) The Debtor shall not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. The Debtor shall not waste or destroy the Collateral or any part thereof or be negligent in the care or use of any Collateral. The Debtor shall perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Party has no responsibility to perform such obligations.
(g) Subject to Section 4 Sections 4(b), 6(b), 6(c), and 7(c) hereof, without the Secured Party’s prior written consent, the Debtor shall not, nor shall it permit without the Intermediary to, invest, purchaseSecured Party's prior written consent, sell, exchange, redeem, reinvest, assign, mortgage, lease or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) or any part thereof, the Debtor shall promptly give written notice thereof to the Secured Party generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at the Debtor's cost and expense, shall promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral, prior to its loss, damage or destruction, had become uneconomical, obsolete or worn out and is not necessary for or of importance to the proper conduct of the Debtor's business in the ordinary course. In the event the Debtor shall receive any proceeds of such insurance, the Debtor shall immediately pay over such proceeds to the Secured Party. The Debtor hereby authorizes the Secured Party, at the Secured Party's option, to adjust, compromise and settle any losses under any insurance afforded at any time during the existence of any Event of Default or any other event or condition which with the lapse of time or the giving of notice, or both, would constitute an Event of Default, and the Debtor does hereby irrevocably constitute the Secured Party, and each of its nominees, officers, agents, attorneys, and any other person whom the Secured Party may designate, as the Debtor's attorneys-in-fact, with full power and authority to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Secured Party elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the Debtor subject to final approval of the Secured Party (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $100,000. Net insurance proceeds received by the Secured Party under the provisions hereof or under any policy of insurance covering the Collateral or any part thereof shall be applied to the reduction of the Obligations (whether or not then due); provided, however, that the Secured Party may in its sole discretion release any or all such insurance proceeds to the Debtor. All insurance proceeds shall be subject to the lien and security interest of the Secured Party hereunder. UNLESS THE DEBTOR PROVIDES THE SECURED PARTY WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE SECURED PARTY MAY PURCHASE INSURANCE AT THE DEBTOR'S EXPENSE TO PROTECT THE SECURED PARTY'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT THE DEBTOR'S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE SECURED PARTY MAY NOT PAY ANY CLAIMS THAT THE DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST THE DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTOR MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE SECURED PARTY, BUT ONLY AFTER PROVIDING THE SECURED PARTY WITH EVIDENCE THAT THE DEBTOR HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE SECURED PARTY PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST -7- AND ANY OTHER CHARGES THAT THE SECURED PARTY MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTOR MAY BE ABLE TO OBTAIN ON ITS OWN.
(i) The Debtor shall at all times allow the Secured Party and its representatives free access to and right of inspection of the Collateral.
(j) If any Collateral is in the possession or control of any of the Debtor's agents or processors and the Secured Party so requests, the Debtor agrees to notify such agents or processors in writing of the Secured Party's security interest therein and instruct them to hold all such Collateral for the Secured Party's account and subject to the Secured Party's instructions. The Debtor shall, upon the request of the Secured Party, authorize and instruct all bailees and 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 Party and its 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 Party or its representatives may seek to verify. As to any premises not owned by the Debtor wherein any of the Collateral is located, the Debtor shall, unless the Secured Party requests otherwise, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral and allows the removal of such Collateral by the Secured Party and is otherwise in form and substance acceptable to the Secured Party; provided, however, that no such agreement need be obtained with respect to any one location wherein the value of the Collateral as to which such agreement has not been obtained aggregates less than $100,000 at any one time.
(k) The Debtor agrees from time to time to deliver to the Secured Party such evidence of the existence, identity and location of the Collateral and of its availability as collateral security pursuant hereto (including, without limitation, schedules describing all Receivables created or acquired by the 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, together with the Debtor's warranty of the genuineness thereof, and reports stating the book value of Inventory and Equipment by major category and location), in each case as the Secured Party may reasonably request. The Secured Party shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Secured Party considers appropriate (including, without limitation, the verification of Collateral by use of a fictitious name), and the Debtor agrees to furnish all assistance and information, and perform any acts, which the Secured Party may require in connection therewith. The Debtor shall promptly notify -8- the Secured Party of any Collateral which the Debtor has determined to have been rendered obsolete, stating the prior book value of such Collateral, its type and location.
(l) The Debtor shall comply in all material respects with the terms and conditions of all leases, easements, right-of-way agreements and other similar agreements binding upon the Debtor or affecting the Collateral or any part thereof, and all orders, ordinances, laws and statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to the premises wherein such Collateral is located or the conduct of business thereon.
(m) The Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party such further agreements, assignments, instruments and documents and to do all such other things as the Secured Party may reasonably deem necessary or appropriate to assure the Secured Party its lien and security interest hereunder, including, without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and including such financing statements, and amendments thereof or supplements thereto, and such other instruments and documents as the Secured Party may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any and all financing statements covering the Collateral or any part thereof as the Secured Party may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction. The Debtor agrees to mark its books and records to refle▇▇ ▇he lien and security interest of the Secured Party in the Collateral.
(hn) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem 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 the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Harris Trust and Savings Bank as its prime i▇▇ ▇▇▇me commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial raterate -9- (such rate per annum as so determined being hereinafter referred to as the "Default Rate"). No such performance of any covenant or agreement by the Secured Party on behalf of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/the Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇bill, statement or estimate procured from procure▇ ▇▇om the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇bill, statement or estimate or into i▇▇▇ the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.
Appears in 1 contract
Covenants, Agreements, Representations and Warranties. The Debtor Debtors hereby covenants covenant and agrees agree with, and represents represent and warrants warrant to, the Secured Party Creditors that:
(a) The Each Debtor is duly organized and validly existing in good standing under the laws of the state of its organization. No Debtor shall change its state of organization without the Agent's prior written consent. Each Debtor is the sole and lawful owner of the its Collateral, and has full right, power power, and authority to enter into this Agreement and to perform each and all of the matters and things herein provided for. The execution and delivery of this Agreement, and the observance and performance of each of the matters and things herein set forth, will not (i) contravene or constitute (x) a default under any provision of any Debtor's organizational documents or, (y) a default under any provision of law or any judgment, injunction, order or decree binding upon the on any Debtor or any provision of the Debtor’s trust agreement or any covenant, indenture indenture, or agreement of or affecting any Debtor or any of its property which, in the Debtor case of any default described in this clause (y), is reasonably likely to have a Material Adverse Effect, or (ii) result in the creation or imposition of any lien or encumbrance on any property of the any Debtor except for the lien and security interest granted to the Secured Party Agent hereunder.
(b) The Each Debtor’s principal residence 's respective chief executive office is at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇the location listed under Column 2 on Schedule A attached hereto opposite such Debtor's name; and the such Debtor has no other residences (exclusive executive offices or places of vacation homes)business other than those listed under Column 3 on Schedule A attached hereto opposite such Debtor's name. The Collateral owned or leased by each Debtor is and shall remain in such Debtor's possession or control at the locations listed under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name (collectively for each Debtor, the "Permitted Collateral Locations"), except for (i) Collateral which in the ordinary course of such Debtor's business is in transit between Permitted Collateral Locations, (ii) Collateral aggregating less than $100,000 in fair market value outstanding at any one time, and (iii) Inventory temporarily located in warehouses not owned by the Debtor as described in and pursuant to the conditions of Section 7(d) hereof. If for any reason any Collateral is at any time kept or located at a location other than a Permitted Collateral Location, the Agent shall nevertheless have and retain a lien on and security interest therein. The Debtors own and shall at all times own all Permitted Collateral Locations, except to the extent otherwise disclosed under Columns 2 and 3 on Schedule A. No Debtor shall not move its principal residence chief executive office or maintain a residence place of business at a location other than those specified under Columns 2 or 3 on Schedule AA or permit any Collateral to be located at a location other than a Permitted Collateral Location, in each case without first providing the Secured Party Agent at least 30 days’ ' prior written notice of the Debtor’s 's intent to do so; provided that the each Debtor shall at all times maintain its principal residence chief executive office, places of business, and Permitted Collateral Locations in the United States of America and, with respect to any new locationchief executive office or place of business or location of Collateral, the such Debtor shall have taken all action reasonably requested by the Secured Party Agent to maintain the lien and security interest of the Secured Party Agent in the Collateral at all times fully perfected and in full force and effect.
(c) The Each Debtor’s 's legal name is name, state of organization and organizational number (if any) are correctly set forth in the first paragraph under Column 1 on Schedule A of this Agreement. The No Debtor has not had any different name, or transacted business under any trade name other than the Debtor’s name, in each case at any time during the immediately preceding five-year period, and does not currently transact business, under any other legal names or trade names other than the prior legal names and trade names (if any) set forth on Schedule B attached hereto. The No Debtor shall not change its legal name or transact business under any other trade name without first giving 30 days’ ' prior written notice of its intent to do so to the Secured PartyAgent.
(d) The Collateral and every part thereof is and shall be free and clear of all security interests, liens (including, without limitation, mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, description and whether voluntary or involuntary, except for (i) the lien and security interest of the Secured Party Agent therein and (ii) the rights other Liens permitted by Section 8.8 of the Intermediary set forth in the Securities Account Control Agreement (as hereinafter defined)Credit Agreement. The Each Debtor shall warrant and defend the Collateral against any material claims and demands of all persons at any time claiming the same or any interest in the Collateral adverse to any of the Secured PartyCreditors.
(e) The Each Debtor shall promptly pay when due all taxes, assessments and governmental charges and levies upon or against the Debtor it or any of the its Collateral, in each case before accordance with the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings which prevent foreclosure or other realization upon any provisions of the Collateral, and the Debtor shall have established adequate reserves thereforCredit Agreement.
(f) Each Debtor agrees it shall not waste or destroy the Collateral or any part thereof and shall not be negligent in the care or use of any Collateral. Each Debtor agrees it will not use, manufacture, sell or distribute any Collateral in violation of any statute, ordinance or other governmental requirement. Each Debtor will perform in all material respects its obligations under any contract or other agreement constituting part of the Collateral, it being understood and agreed that the Secured Creditors have no responsibility to perform such obligations.
(g) Subject to Sections 5(d), 6(a), 7(b), 7(c), and 8(c) hereof and the terms of the Credit Agreement (including, without limitation, Section 4 hereof8.10 thereof), each Debtor agrees it will not, without the Secured Party’s Agent's prior written consent, the Debtor shall not, nor shall it permit the Intermediary to, invest, purchase, sell, exchangeassign, redeemmortgage, reinvest, assignlease, or otherwise dispose of the Collateral or any part thereof or any interest therein.
(gh) Each Debtor shall insure its Collateral consisting of tangible personal property against such risks and hazards as other companies similarly situated insure against, and including in any event loss or damage by fire, theft, burglary, pilferage, and loss in transit, in amounts and under policies containing loss payable clauses to the Agent as its interest may appear (and, if the Agent requests, naming the Agent as additional insureds therein) by insurers reasonably acceptable to the Agent. All premiums on such insurance shall be paid by the Debtors and the policies of such insurance (or certificates therefor) delivered to the Agent. All insurance required hereby shall provide that any loss shall be payable notwithstanding any act or negligence of the relevant Debtor, shall provide that no cancellation thereof shall be effective until at least 30 days after receipt by the relevant Debtor and the Agent of written notice thereof, and shall be reasonably satisfactory to the Agent in all other respects. In case of any material loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor shall promptly give written notice thereof to the Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral or any part thereof, the relevant Debtor, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Debtor's cost and expense, will promptly repair or replace the Collateral so lost, damaged or destroyed, except to the extent such Collateral is not necessary to the conduct of such Debtor's business in the ordinary course. In the event any Debtor shall receive any proceeds of such insurance, such Debtor shall immediately pay over such proceeds of insurance to the Agent which will thereafter be applied to the reduction of the Obligations (whether or not then due) or held as collateral security therefor, as the Agent may then determine or as otherwise provided for in the Credit Agreement; provided, however, that the Agent agrees to release such insurance proceeds to the relevant Debtor for replacement or restoration of the portion of the Collateral lost, damaged, or destroyed if, but only if, (i) at the time of release no Default or Event of Default exists, (ii) written application for such release is received by the Agent from the relevant Debtor within 30 days of the receipt of such proceeds, and (iii) the Agent has received evidence reasonably satisfactory to it that the collateral lost, damaged, or destroyed has been or will be replaced or restored to its condition immediately prior to the loss, destruction, or other event giving rise to the payment of such insurance proceeds. Each Debtor hereby authorizes the Agent, at the Agent's option, to adjust, compromise and settle any losses under any insurance afforded at any time after the occurrence and during the continuation of any Default or Event of Default, and such Debtor does hereby irrevocably constitute the Agent, its officers, agents and attorneys, as such Debtor's attorneys-in-fact, with full power and authority after the occurrence and during the continuation of any Default or Event of Default to effect such adjustment, compromise and/or settlement and to endorse any drafts drawn by an insurer of the Collateral or any part thereof and to do everything necessary to carry out such purposes and to receive and receipt for any unearned premiums due under policies of such insurance. Unless the Agent elects to adjust, compromise or settle losses as aforesaid, any adjustment, compromise and/or settlement of any losses under any insurance shall be made by the relevant Debtor subject to final approval of the Agent (regardless of whether or not an Event of Default shall have occurred) in the case of losses exceeding $100,000. All insurance proceeds shall be subject to the lien and security interest of the Agent hereunder. UNLESS THE DEBTORS PROVIDE THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE DEBTORS' EXPENSE TO PROTECT THE AGENT'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY DEBTOR'S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT ANY DEBTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEBTOR IN CONNECTION WITH THE COLLATERAL. THE DEBTORS MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE DEBTORS HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE DEBTORS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE DEBTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
(i) Each Debtor will at all times allow the Secured Creditors and their respective representatives free access to and right of inspection of the Collateral at such reasonable times and intervals as the Agent or any other Secured Creditor may reasonably designate and, in the absence of any existing Default or Event of Default, with reasonable prior written notice to the relevant Debtor.
(j) If any Collateral is in the possession or control of any agents or processors of a Debtor and the Agent so requests, such Debtor agrees to notify such agents or processors in writing of the Agent's security interest therein and instruct them to hold all such Collateral for the Agent's account and subject to the Agent's instructions. Each Debtor will, upon the request of the 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 Creditors 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 Creditors or their respective representatives may seek to verify. As to any premises not owned by a Debtor wherein any of the Collateral is located, if any, such Debtor shall, upon the Agent's request, cause each party having any right, title or interest in, or lien on, any of such premises to enter into an agreement (any such agreement to contain a legal description of such premises) whereby such party disclaims any right, title and interest in, and lien on, the Collateral, allows the removal of such Collateral by the Agent or its agents or representatives, and otherwise is in form and substance reasonably acceptable to the Agent.
(k) Upon the Agent's request, each Debtor agrees from time to time to deliver to the 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 the Agent may reasonably request. The Agent shall have the right to verify all or any part of the Collateral in any manner, and through any medium, which the Agent considers appropriate and reasonable, and each Debtor agrees to furnish all assistance and information, and perform any acts, which the Agent may reasonably require in connection therewith.
(l) Each Debtor will comply in all material respects with the terms and conditions of any and all leases, easements, right-of-way agreements and other agreements binding upon such Debtor or affecting the Collateral, in each case which cover the premises wherein the Collateral is located, and any orders, ordinances, laws or statutes of any city, state or other governmental entity, department or agency having jurisdiction with respect to such premises or the conduct of business thereon.
(m) Schedule C (or, in the case of trade names, Schedule B) attached hereto contains a true, complete, and current listing of all copyrights, copyright applications, trademarks, trademark applications, tradenames, patents, patent rights or licenses, patent applications and other intellectual property rights owned by each of the Debtors that are registered with any governmental authority. The Debtors shall promptly notify the Agent in writing of any additional intellectual property rights acquired or arising after the date hereof, and shall submit to the Agent a supplement to Schedule C to reflect such additional rights (provided any Debtor's failure to do so shall not impair the Agent's security interest therein). Each Debtor owns or possesses rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, trade names, trade name rights, copyrights and rights with respect to the foregoing which are required to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and the Debtors are not liable to any person for infringement under applicable law with respect to any such rights as a result of its business operations.
(n) Each Debtor agrees to execute and deliver, and shall cause the Intermediary to execute and deliver, deliver to the Secured Party Agent such further agreements, assignments, instruments and documents documents, and to do all such other things things, as the Secured Party Agent may reasonably deem necessary or appropriate to assure the Secured Party Agent its lien and security interest hereunder, including, including without limitation, a Securities Account Control Agreement executed by the Intermediary substantially in the form attached hereto as Schedule B or such other securities account control agreement executed by the Intermediary in form and substance satisfactory to the Secured Party (such Securities Account Control Agreement, as the same may be amended, modified or restated from time to time being referred to herein as the “Securities Account Control Agreement”), and i) executing such financing statements, and amendments thereof statements or supplements thereto, and such other instruments and documents as the Secured Party Agent may from time to time reasonably require in order to comply with the UCC. The Debtor hereby agrees that a carbonUCC and any other applicable law, photographic or other reproduction of this Agreement or any (ii) executing such financing statement is sufficient for filing as a financing statement by the Secured Party without notice thereof to the Debtor wherever the Secured Party in its sole discretion desires to file the same. The Debtor hereby authorizes the Secured Party to file any patent, trademark, and all financing statements covering the Collateral or any part thereof copyright agreements as the Secured Party Agent may require. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral or any part thereof, or to any of the Obligations, the Debtor agrees to execute and deliver all such instruments and documents and to do all such other things as the Secured Party in its sole discretion deems necessary or appropriate to preserve, protect and enforce the lien and security interest of the Secured Party under the law of such other jurisdiction.
(h) On failure of the Debtor to perform any of the covenants and agreements herein contained, the Secured Party may, at its option, with 3 Business Days prior written notice unless the Secured Party reasonably determines that the Collateral or its interest therein will be harmed by the giving of such notice, perform the same and in so doing may expend such sums as the Secured Party may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claims, and all other expenditures which the Secured Party may be compelled to make by operation of law or which the Secured Party 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 Debtor immediately without notice or demand, shall constitute additional Obligations secured hereunder and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by H▇▇▇▇▇ Trust and Savings Bank as its prime commercial rate reasonably require to comply with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate. No such performance of any covenant or agreement by the Secured Party on behalf filing requirements of the Debtor, and no such advancement or expenditure therefor, shall relieve the Debtor of any default under the terms of this Agreement or in any way obligate the/Secured Party to take any further or future action with respect thereto. The Secured Party, in making any payment hereby authorized, may do so according to any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Secured Party, in performing any act hereunder, shall be the sole judge of whether the Debtor is required to perform same under the terms of this Agreement. The Secured Party is hereby authorized to charge any depository or other account of the Debtor maintained with the Secured Party for the amount of such sums and amounts so expended.United St
Appears in 1 contract
Sources: Security Agreement (Ios Brands Corp)