COVENANTS OF DEBTOR. The Debtor covenants and agrees that: (a) Debtor will not move or permit to be moved the Collateral or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement with the proper office and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing; (b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party; (c) Intentionally Omitted; (d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect the Collateral against the rights, claims or interests of third persons, or to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership; (e) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto; (f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind; (g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law; (h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default; (i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.; (j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever; (k) Debtor will keep and maintain the Collateral in good condition, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof; (l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guaranties; (m) Intentionally omitted;
Appears in 2 contracts
Sources: Security Agreement (Lakes Entertainment Inc), Security Agreement (Lakes Entertainment Inc)
COVENANTS OF DEBTOR. The Debtor covenants and agrees that:
(a) Debtor will not move or permit to be moved the Collateral or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement statement(s) with the proper office office(s) and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing filing(s) shall be satisfactory in form, substance and location to Secured Party prior to such filing;
(b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: case (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;prior
(c) Intentionally Omitted;Debtor will maintain all material licenses, permits, approvals, authorizations and certificates prescribed by all applicable foreign, federal, state and local laws and regulations, including any required by the FDA, which are necessary for the conduct of the Business by the Debtor where the failure to maintain such licenses, permits, approvals, authorizations and certificates will have a material adverse effect on the Business of Debtor, will conduct the Business in substantial compliance with all material applicable foreign, federal, state and local laws, rules, regulations and judicial or administrative orders and processes, will take all steps deemed by the Debtor to be reasonably necessary to protect its right, title and interest in and to all of its Trademarks, Patents and Copyrights, and will perform and comply with all contracts, commitments and obligations by which it is bound relating to the Business.
(d) Debtor will promptly, and in no event later than 21 10 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, notices and financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect the Collateral against the rights, claims or interests of third persons, or to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;.
(e) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the liens created by this Security Agreement, and Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest thereinexchange, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied allow to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;go
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into into, modify or amend any indenture, mortgage, deed of trust, contract, undertaking, document, instrument existing or other agreement, except for the Consulting Contract and any documents, instruments future contracts or agreements related thereto relating to the sale or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose disposition of the Collateral or any part thereof after outside the occurrence ordinary course of an Event business without the prior written consent of DefaultSecured Party. Upon request of Secured Party, Debtor will provide Secured Party with copies of all existing and hereafter created contracts and agreements pertaining to any such sale or disposition and of all amendments and modifications thereto;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, maintenance fees, renewal fees, assessments and governmental charges or levies against the Collateral prior to the delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever, except for the payment of taxes contested by it in good faith, by appropriate proceedings, and for which Debtor has made appropriate reserve therefor and so long as no levy or lien has been imposed upon any of the Collateral;
(j) Debtor will provide Secured Party with current financial information concerning Debtor's business on a monthly, quarterly and audited fiscal year-end basis, with detail satisfactory to Secured Party and which shall be prepared in accordance with generally accepted accounting principles consistently applied.
(k) Debtor will keep Secured Party shall have at reasonable times on prior notice, the right to enter into and maintain upon any premises where any of the Collateral in good conditionor records with respect thereto are located for the purpose of inspecting the same, working order and repair and from time to time will make or cause to be made all repairsperforming any audit, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse making copies of records, observing the use of any part of the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of otherwise protecting its normal and expected use security interest in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Secured Party shall have the right at any time, but shall not be obligated, to make any payments and do any other acts Secured Party may deem necessary or desirable to protect its security interest in the Collateral, including, without limitation, the right to pay, purchase, contest or compromise any encumbrance, charge or lien (excluding any Permitted Liens) applicable to any Collateral hereunder, and appear in and defend any action or proceeding purporting to affect its security interest in and/or the value of any Collateral, and in exercising any such powers or authority, the right to pay all expenses incurred in connection therewith, including attorneys fees. Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed hereby agrees that it shall be bound by any such payment made or incurred or act taken by Secured Party in hereunder and shall reimburse Secured Party' s sole Party for all reasonable payments made and absolute discretionexpenses incurred under the Security Agreement, which amounts shall be secured under this Security Agreement. Secured Party shall have no obligation to create, preserve and enforce make any liens of the foregoing payments or guaranties available to secure or guaranty payments due Debtor under perform any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to of the extent and at the earliest time permitted by law, any such liens and rights to under such guarantiesforegoing acts;
(m) Intentionally omittedSecured Party may take any actions permitted hereunder or in connection with the Collateral by or through agents or employees and shall be entitled to retain counsel and to act in reliance upon the advice of counsel concerning all such matters;
(n) Debtor hereby agrees not to assign, license, abandon or divest itself of any right under any Trademark (other than as provided in Section 1.5(c)(i) of the Purchase Agreement with respect to the Feverall(R) Sprinkle Caps(R) Trademark) absent prior written approval of the Secured Party;
(o) Debtor agrees, promptly upon learning thereof, to notify the Secured Party in writing of the name and address of, and to furnish such pertinent information that may be available with respect to, any party who Debtor believes is infringing or otherwise violating any of such Debtor's rights in and to any Trademark, or with respect to any party claiming that Debtor's use of any Trademark violates in any material respect any property right of that party. Debtor further agrees, unless otherwise agreed by the Secured Party, diligently to prosecute any person or entity infringing any material Trademark;
(p) Subject to the provisions of Section 1.5(c)(i) of the Purchase Agreement relating to the Feverall(R) Sprinkle Caps(R) Trademark, Debtor agrees to use the Trademarks in interstate commerce during the time in which this Security Agreement is in effect, sufficiently to preserve such Trademarks as trademarks or service marks registered under the laws of the United States or any other country, as applicable;
(q) Debtor shall, at its own expense, diligently process all documents required by the Trademark Act of 1946, 15 U.S.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ascent Pediatrics Inc), Asset Purchase Agreement (Ascent Pediatrics Inc)
COVENANTS OF DEBTOR. The Debtor covenants and agrees that:
(a) Debtor will not move or permit to be moved the Collateral or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement with the proper office and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing;
(b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;
(c) Intentionally Omitted;
(d) Debtor will promptly, and in no event later than 21 twenty one (21) days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect the Collateral against the rights, claims or interests of third persons, or to effect or to assure further the purposes purposes' and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;
(e) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 7.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, mortgage▇▇▇▇▇▇▇▇, deed of trust▇▇▇▇ ▇▇ ▇▇▇▇▇, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each the Project Facilities and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever;
(k) Debtor will keep and maintain the Collateral in good condition, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s 's sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateralparties, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guaranties;
(m) Intentionally omitted;
Appears in 1 contract
COVENANTS OF DEBTOR. The Debtor covenants and agrees that:
(a) Debtor will not move or permit to be moved defend the Collateral or any portion thereof to any location against the claims and demands of all other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement with the proper office and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing;
(b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;
(c) Intentionally Omitted;
(d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (parties including, without limitation, noticesdefenses, legal opinionssetoffs, financing statements, mortgagee waivers, landlord disclaimers claims and subordination agreements) necessary or appropriate to and take counterclaims asserted by any other actions which are necessary or, in the judgment of obligor against Debtor and/or Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect will keep the Collateral against the rightsfree from all security interests, claims liens or interests of third personsother encumbrances, or to effect or to assure further the purposes and provisions of this Security Agreementexcept for Permitted Liens, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality not sell, transfer, lease, assign, deliver or otherwise dispose of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;
(e) interest therein without the prior written consent of Secured Party except for sales of Inventory in the ordinary course of Debtor’s business; Debtor will keep, in accordance with generally accepted accounting principles consistently applied, accurate and complete records concerning the Collateral, and at Secured Party’s request, Debtor will not in ▇▇▇▇ any way encumber, or hypothecate, or create or and all such records to indicate the Security Interest and will permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating or its agents to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of inspect the Collateral and to audit and make extracts from such records or any information received by of Debtor’s books, ledgers, financial reports, correspondence or other records; Except in connection with Permitted Liens, Debtor will deliver to Secured Party, upon demand, any Debtor relative instruments, documents and chattel paper constituting, representing or relating to the Collateral, which may in any material way affect the value of the Collateral or any part thereof and any schedules, invoices, shipping documents, delivery receipts, purchase orders, contracts or other documents representing or relating to the rights and remedies of Secured Party in respect thereto;
Collateral or any part thereof; Without thirty (f30) without the days prior written consent of notice to Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and change its business addresses or chief executive office, or (ii) make any change in such amounts as are reasonably satisfactory to Secured PartyDebtor’s name, including without limitationstate of formation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance identity or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever;
(k) organizational status; Debtor will keep and maintain the Collateral in good condition, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse use the Collateral in violation of any provisions of this Agreement, any applicable law or abuse governmental regulation or of any policy insuring the Collateral, unless the failure to so keep the Collateral will not have a material adverse effect on Debtor, the Collateral, or waste the business, operation, assets or allow it to deteriorate except for affairs of Debtor; Debtor will (i) pay all taxes, assessments and other charges of every nature which may be levied or assessed against the ordinary wear Collateral other than taxes, assessments, fees and tear charges being contested in good faith by appropriate proceedings being diligently pursued and (ii) at all times keep the Collateral insured against loss, damage, theft and other risks, in such amounts, with such insurance carriers and under such form of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would shall be materially adverse to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign reasonably acceptable to Secured Party, with appropriate endorsements designating Secured Party as lender loss payee and additional insured, as requested by Secured Party, and which policies of insurance shall provide that all losses thereunder shall be payable to Secured Party, as its interest may appear, and Secured Party may apply any proceeds of such insurance received by it toward payment of any of the Indebtedness, whether or not due, in such order of application as Secured Party may determine, and the original or duplicates of such policies of insurance or certificates thereof shall be delivered to Secured Party, on the date hereof, upon each renewal and upon its request; Debtor will not permit any part of the Collateral to be or become an accession to other goods not covered by this Agreement; If all or any part of the Collateral is located on property which is not owned by Debtor, Debtor will deliver to Secured Party for each such location a Landlord’s Waiver; and Debtor will execute and deliver to Secured Party such certificates of title, assignments and other documents and will take such other actions relating to the extent Security Interest and at the earliest time permitted perfection thereof as Secured Party may reasonably request and will pay all costs of title searches and filing financing statements, certificates of title, assignments and other documents in all public offices requested by law, any such liens and rights to under such guaranties;
(m) Intentionally omitted;Secured Party.
Appears in 1 contract
COVENANTS OF DEBTOR. The Debtor covenants Unless and agrees thatuntil the Creditor expressly consents to another course of action:
(a) Debtor will not move shall, at such intervals and in such form and manner as the Creditor may require, execute, deliver and otherwise provide the Creditor with schedules confirming or permit assigning to the Creditor the Accounts or other Collateral herein described and intended to be moved covered by this Agreement and copies of invoices, evidences of shipment or delivery and such other information, including aging and reconciliation reports, as the Collateral Creditor may deem necessary or any portion thereof advisable. Additionally, Debtor shall from time to any location time execute financing statements and other than that set forth documents in Section 4(fform satisfactory to the Creditor (and pay the cost of filing or recording them in whatever public offices the Creditor deems necessary or advisable) hereof or locations established in compliance with Section 5(b) hereof without and perform such other acts as the prior written consent of the Secured Party Creditor may request to perfect and the prior filing of maintain a financing statement with the proper office and valid properly perfected security interest in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filingCollateral;
(b) At the Creditor's request Debtor will not voluntarily shall ▇▇▇▇ or involuntarily change its name, identity, corporate structure, or location stamp each of its chief executive office individual ledger sheets or any of cards pertaining to Accounts with the legend "For value received, this Account has been assigned to the Creditor," and shall stamp or otherwise ▇▇▇▇ and keep its other places of business, unless books and records relating to the Collateral in any such case: manner as the Creditor may deem necessary or advisable;
(c) Debtor shall (i) Debtor shall have first received keep such books and records pertaining to the prior written consent Collateral, and at such office or offices of Secured PartyDebtor, as may be satisfactory to the Creditor, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) permit representatives of the security interests created hereinCreditor at all reasonable times to inspect the Collateral, which filing shall be satisfactory in form, substance and location to Secured Party prior inspect and make abstracts from Debtor's books and records pertaining or relating to such filingthe Collateral, and (iii) Debtor shall have delivered from time to Secured Party any other documents required time prepare or cause to be prepared and deliver to the Creditor all financial statements, reports and data requested by Secured Party the Creditor, at such times and in a such form and substance as may be satisfactory to Secured Party;
(c) Intentionally Omittedthe Creditor;
(d) Debtor will promptlyshall give such written notice to Account debtors as the Creditor may at time request. The Creditor may at any time, and in no event later than 21 days after a request by Secured Partywhether or not an Event of Default exists under this Agreement, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreementsi) necessary or appropriate to and take notify any other actions which are necessary or, in Account debtor of the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured PartyCreditor's security interests interest in the Collateral, (ii) request information as to enable Secured Party the Collateral from any Account debtor, and (iii) notify an Account debtor to exercise and enforce its rights and remedies hereunder make all payments with respect to any Collateral, to protect the Collateral against directly to the rights, claims Creditor or interests of third persons, or to effect or to assure further in any other manner directed by the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Creditor;
(e) Debtor will: shall (i) mark conspicuously each item not sell, transfer, lease, abandon, assign or otherwise dispose of chattel paper and each other contra▇▇ ▇ncluded in any of the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating or any interest therein (except that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as Inventory may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor sold in the ordinary course of business) constituting or any other material asset of the Debtor; (ii) not permit the Collateral duly endorsed and accompanied by duly executed instruments to become a part of transfer or assignments, all in form and substance to be affixed to any real or personal property without first making arrangements satisfactory to Secured Partythe Creditor to protect the Creditor's security interest therein; and (viiii) at promptly notify the request Creditor of Secured Partyany Event of Default or any event which with the giving of notice of passage of time a failure to cure could become an Event of Default, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;
defined in paragraph 12; (eiv) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all the claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office persons; and (v) pay promptly all taxes and assessments with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without Debtor shall carry such insurance on the Collateral as may be satisfactory to and may be requested by the Creditor. If requested by the Creditor all insurance policies shall be written for the benefit of Debtor and the Creditor as their interests may appear, shall provide for 30 days' written notice to the Creditor prior written consent to cancellation and shall be deposited with the Creditor. The Creditor may act as attorney for Debtor in making adjusting and settling claims under or cancelling such insurance and endorsing Debtor's name on any draft relating thereto. The Creditor in its sole discretion may apply any proceeds of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion insurance towards payment of the Collateral Obligations, whether or not due, in any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral order of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kindpriority;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will duly pay and discharge all taxes, assessments assessments, and governmental charges or levies prior to the date on which penalties are attached thereto unless and to the extent only that the same shall be contested in good faith and by appropriate proceedings, and promptly pay all bills, immediately notifying Creditor of inability to do so;
(h) At its option, the Creditor may discharge taxes, liens, security interests and other encumbrances against the Collateral prior and may pay for the repair of any damage to delinquency the Collateral, the maintenance and preservation thereof and will insurance thereon. Debtor shall reimburse the Creditor on demand for any payments so made, plus interest of such payment. Any such payments by the Creditor shall be a fixed indebtedness of Debtor to the Creditor, secured by the Collateral even if such payments cause the total outstanding indebtedness of Debtor to exceed Debtor's loan limit;
(i) Debtor shall not incur or permit to be outstanding any indebtedness for borrowed money except (i) indebtedness to the Creditor, (ii) current obligations incurred in the ordinary course of business and (iii) other indebtedness for which the Creditor has given or may in the future give its express consent;
(j) Debtor shall not pledge, mortgage or otherwise encumber, or create or permit a security interest to exist in any of the Collateral or any other asset of the Debtor, to or in favor of anyone other than the Creditor, and shall keep the Collateral free of all unpaid claims in good condition and charges (including claims for labor, materials and supplies) whatsoeverrepair;
(k) Debtor will keep and maintain the Collateral in good conditionExcept for temporary processing or storage, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in including without limitation Inventory, shall be kept at Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect address or addresses listed on the date hereof that would first page of this Agreement or at such other location as shall be materially adverse satisfactory to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereofCreditor;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon shall report to Creditor any change in the occurrence location of an Event any portion of Default, directed by Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute the Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guaranties;
(m) Intentionally omittedIf Debtor is a partnership or corporation it shall not change its name, the name under which it is doing business or corporate structure without providing prior notice thereof to the Creditor;
(n) A carbon, photographic, or other reproduction of this Security Agreement, or any Financing Statement executed in connection herewith, is sufficient as a Financing Statement and may be filed or recorded as such in any office where a Financing Statement on the Collateral described herein may be filed;
(o) Debtor hereby expressly grants Secured Party a power of attorney, and appoints and constitutes Secured Party as Debtor's agent, for the purpose and with the power to sign on behalf of Debtor and in Debtor's name, one or more Financing Statements covering any of the Collateral described herein; and
(p) These covenants are hereby supplemented by those set forth in the Loan Agreement, if executed and delivered in connection herewith.
Appears in 1 contract
COVENANTS OF DEBTOR. The Debtor covenants and agrees that:: -------------------
(a) Debtor will not move or permit to be moved the Collateral or any portion thereof to any location other than that set forth in or referred in Section 4(f) hereof or the respective Hotels or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement with the proper office and in the proper form form, to the extent necessary or appropriate, to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing; provided, however that (i) Debtor shall be permitted to move assets pursuant to Section 4.10 of the Indenture and (ii) the foregoing shall not apply to deposit accounts (so long as Debtor complies with Section 5(c) below) or any other intangible Collateral or any vehicles included in the Collateral;
(b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: case (i) Debtor shall have first received the prior delivered written consent of notice to Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form form, to the extent necessary or appropriate, to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents that may be required by Secured Party in a form and substance reasonably satisfactory to Secured PartyParty to perfect or continue the perfection (without loss of priority) of the security interest created herein subject to the terms and conditions of the 1996 Indenture and the Intercreditor Agreement, or Debtor will at all times maintain its status as a citizen of the United States as provided in Section 4(f) hereof;
(c) Intentionally OmittedDebtor will not establish or create any deposit accounts other than those set forth in Exhibit "A" without giving Secured Party prior ---------- written notice;
(d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate satisfactory to Secured Party subject to the terms and conditions of the 1996 Indenture and the Intercreditor Agreement, and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect the Collateral against the rights, claims or interests of third personspersons (other than holders of Permitted Liens), or to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark ▇▇▇▇ conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded included in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral Receivable shall be evidenced by a promissory note or other instrument or chattel paper (other than checks checks, which Debtor promptly shall deposit into one of the deposit accounts encumbered hereunder or markers, received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks checks, which Debtor promptly shall deposit into one of the deposit accounts encumbered hereunder, or markers received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignmentsassignment, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured PartyParty following the occurrence of a default that, with the passage of time would result in an Event of Default, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral Equipment and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership; provided, however, that notwithstanding anything to the contrary in this Agreement, the actions under clauses (iii) and (v) shall not be required with respect to promissory notes, other instruments, securities and chattel paper with a face or fair market value not to exceed in the aggregate $250,000;
(e) without the prior written consent of Secured PartyParty or as otherwise expressly permitted by the Indenture, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens Permitted Liens, including without limitation encumbrances permitted by the Indenture and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens")liens created by this Security Agreement, and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest thereintherein (other than holders of Permitted Liens), except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens including without limitation encumbrances permitted by the Indenture or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that as permitted by the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest thereinIndenture. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements)) or, if such proceeds are required to be delivered under the 1996 Indenture to the 1996 Notes Trustee, Debtor shall promptly provide appropriate notice to the Secured Party or take any such other actions as are necessary to perfect the Secured Party's security interest in such proceeds. If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting ContractIndenture, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever;
(ki) Debtor will keep and maintain the Collateral in good condition, working order and repair repair, ordinary wear and tear excepted, and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies -------- as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), and will comply with all material laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material portion of the Collateral or portion thereof;
(lj) The Upon the occurrence and during the continuation of an Event of Default or a material default which, with the passage of time is reasonably likely to cause an Event of Default, (i) Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s 's sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateralparties, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guarantiesguaranties and (ii) Debtor will give Secured Party written notice of any payments due Debtor within five (5) days after any such payments become thirty (30) days delinquent;
(k) Upon Secured Party's request, Debtor will deliver to Secured Party records and schedules that show the status, condition and location of the Collateral, including reports reasonably requested by Secured Party, all in reasonable detail; will promptly notify Secured Party in writing of any event, or change of law, regulation, business practice, or business condition that may materially adversely affect the value of the Collateral. Secured Party shall have the right to review and verify such records, schedules, and notices, and Debtor will reimburse Secured Party for all costs incurred thereby;
(l) Except as otherwise provided in this Section 5(l), Debtor shall continue to collect, at its own expense, all amounts due or to be become due Debtor under the Receivables. In connection with such collections, Debtor may take (and upon the occurrence and during the continuation of an Event of Default, at Secured Party's direction, shall take) such action as Debtor (or, upon the occurrence and during the continuation of an Event of Default, Secured Party) may deem necessary or advisable to enforce collection of the Receivables; provided, however that Debtor shall not -------- adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any account debtor or obligor thereof, or allow any credit or discount thereon, other than adjustments, settlements, or discounts that are in accordance with Debtor's policies as then in effect. Secured Party shall have the right at any time after the occurrence and during the continuation of an Event of Default to notify the account debtors or obligors under any of the Receivables of the assignment of such Receivables to Secured Party and to direct such account debtors or obligors to make payment of all amounts due or to become due to Debtor thereunder directly to Secured Party and, upon such notification and at the expense of Debtor, to enforce collection of any such Receivables, and to adjust, settle or compromise the amount or payment thereof, as Secured Party may deem appropriate in its sole discretion, subject to the Intercreditor Agreement. After the occurrence and during the continuation of an Event of Default (i) all amounts and proceeds (including instruments) received by Debtor in respect of the Receivables shall be received in trust for the benefit of Secured Party hereunder and, upon notice from Secured Party, shall be segregated from other funds of Debtor and shall be forthwith paid over to Secured Party in the same form as so received (with all necessary or appropriate endorsements) to be held as cash collateral and applied as provided by the Indenture, subject to the Intercreditor Agreement, and (ii) Debtor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any account debtor or obligor thereof, or allow any credit or discount thereon;
(m) Intentionally omittedSecured Party shall have the right during regular business hours and upon prior notice to Debtor to enter into and upon any premises where any of the Collateral or records with respect thereto are located for the purpose of inspecting the same, performing any audit, making copies of records, observing the use of any part of the Collateral, or otherwise protecting its security interest in the Collateral. Debtor will hold and preserve all records concerning the Receivables and all originals of all chattel paper that evidences any Receivables;
(n) Secured Party shall have the right at any time while an Event of Default exists, but shall not be obligated, to make any payments and do any other acts Secured Party may deem necessary or desirable to protect its security interest in the Collateral, including, without limitation, the right to pay, purchase, contest or compromise any encumbrance, charge or lien (excluding any Permitted Liens) applicable or purported to be applicable to any Collateral hereunder, and appear in and defend any action or proceeding purporting to affect its security interest in and/or the value of any Collateral, and in exercising any such powers or authority, the right to pay all expenses incurred in connection therewith, including reasonable attorneys' fees. Debtor hereby agrees that it shall be bound by any such payment made or incurred or act taken by Secured Party hereunder and shall reimburse Secured Party for all payments made and expenses incurred under this Security Agreement, which amounts shall be secured under this Security Agreement. Secured Party shall have no obligation to make any of the foregoing payments or perform any of the foregoing acts;
(o) if Debtor shall become entitled to receive or shall receive any certificate, instrument, option or rights (other than checks, which Debtor promptly shall deposit into one of the deposit accounts encumbered hereunder, or markers, received by Debtor in the ordinary course of business and i
Appears in 1 contract
COVENANTS OF DEBTOR. The Debtor hereby covenants represents, warrants ------------------- and agrees thatthat while any Obligations are outstanding:
(a) Debtor has and will not move or permit have good and valid title to be moved the Collateral from time to time owned or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent acquired by it, free and clear of the Secured Party all liens, encumbrances, pledges and the prior filing of a financing statement with the proper office and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created hereinof any kind or nature whatsoever (collectively, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing;"Liens"); -----
(b) Debtor will not voluntarily create or involuntarily permit to exist any Lien upon or with respect to any of the Collateral, except for the security interest granted under this Agreement and the lien granted to Highgate;
(c) Debtor shall not change its name, identitystate of incorporation, type of entity, identity or corporate structurestructure to such an extent that any financing statement filed by Secured Party in connection with this Agreement would become defective or materially misleading. The tax identification number of (i) VNS is 20-2328798, (ii) VSI is 59-2▇▇▇▇▇▇, ▇▇d (iii) Charys ▇▇ ▇▇-▇▇▇2284. The state ident▇▇▇▇▇▇▇▇▇ number of (i) VNS is P05000012213 (ii) VSI is G09210 and (iii) Charys is 3791748.
(d) Debtor shall maintain the security interests created by this Agreement and, at no cost or expense to Secured Party, shall defend Debtor's right, title and interest in and to the Collateral, and defend the Collateral against all other claims or demands of any other party and all other liabilities of any nature whatsoever;
(e) Debtor, at its sole cost and expense, shall execute and deliver, or location of cause to be duly executed and delivered, financing or continuation statements and such further instruments and documents, and do and cause to be done all such acts and things, as Secured Party may at any time reasonably request to enforce, perfect and protect Secured Party's security interest in the Collateral as herein provided and Secured Party's rights and remedies with respect to the Collateral;
(f) Debtor shall keep and maintain at all times true and complete books, records and accounts in which complete, true and correct entries shall be made with respect to the Collateral and Debtor's transactions, in accordance with generally accepted accounting principles and normal business practices; Debtor shall permit Secured Party or its chief executive office or representatives to visit and inspect any of its the properties of Debtor, to examine Debtor's books of account and other places of records and files and make copies thereof and to discuss the affairs, business, unless in finances and accounts of Debtor with Debtor's representatives and employees; and Debtor shall make or permit Secured Party to make, upon request, a designation on Debtor's books of account and records of the security interest granted hereunder;
(g) Debtor shall promptly furnish Secured Party with all information concerning the Collateral, the performance and payment of Debtor's obligations, liabilities and indebtedness hereunder and the business, operations and financial condition of Debtor, as Secured Party may request;
(h) Debtor shall not take any such case: other action that would have a material adverse effect on the perfection or otherwise impair the security interest created hereby; and
(i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;
(c) Intentionally Omitted;
(d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect the Collateral against the rights, claims or interests of third persons, or to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor in the ordinary course of business), deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;
(e) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly immediately notify Secured Party of any attachment act, condition, or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateralevent, which may in any material way affect with the value giving of the Collateral notice or the rights and remedies lapse of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateraltime, or any part thereof or interest thereinboth, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of would constitute an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all timesDefault hereunder.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever;
(k) Debtor will keep and maintain the Collateral in good condition, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), and will comply with all laws, statutes and regulations pertaining to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guaranties;
(m) Intentionally omitted;
Appears in 1 contract
COVENANTS OF DEBTOR. The So long as the Indebtedness remains unpaid, Debtor covenants and agrees that:
(a) Debtor will not move or permit to be moved the Collateral or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent of the Secured Party and the prior filing of a financing statement with the proper office and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing;
(b) Debtor will not voluntarily or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;
(c) Intentionally Omitted;
(d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in the Collateral, to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral, to protect defend the Collateral against the rightsclaims and demands of all other parties, claims including any Account Debtor, except purchasers or interests of third persons, or to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality losses of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor inventory in the ordinary course of business), deliver will keep the Collateral free from all security interests or other encumbrances, and pledge to Secured Party such note will not sell, transfer, lease, or instrument or chattel paper duly endorsed and accompanied by duly executed instruments otherwise dispose of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate of title or other evidence of ownership;
(e) interest without the prior written consent of Secured Party, except that so long as Debtor is not in default hereunder, Debtor may sell or lease Inventory in the ordinary course of Debtor’s business; (b) will keep the Collateral within the state of Debtor’s address above (c) will notify Secured Party promptly in writing of any change in Debtor’s address, specified above or in Debtor’s name, identity or corporate structure; (d) will notify Secured Party promptly in writing of any change in the location of any Collateral or of the records with respect thereto or any additional locations at which the Collateral or records are kept, and will permit Secured Party or its agents to inspect the Collateral; (e) will keep the Collateral in ▇▇▇▇ condition and repair, and will not use the Collateral in violation of any way encumberprovision of this Security Agreement, of any applicable statute, regulation or hypothecateordinance or of any policy insuring the Collateral; (f) in connection herewith, will execute and deliver to Secured Party such financing statements, and other documents as may be requested by Secured Party, will pay ail costs of title searches, and filing financing statements and other documents in all public offices requested by Secured Party, and will do such other things as Secured Party may request; (g) will pay all taxes. assessments and other charges of every nature which may be levied or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in assessed against the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend insure the Collateral against all claims risks, and demands in coverage, form and amount as is usually carried by prudent corporations carrying on similar operations under like circumstances, Secured Party with Secured Party named loss payee therefore under a standard loss payee clause, and, at Secured Party’s Request, will deliver each policy or certificate of all persons at any time claiming Insurance therefore to Secured Party, (h) will prevent the same Collateral or any interest thereinpart thereof from ;being or becoming an accession to other goods not covered by this Security Agreement; (i) if the Collateral is not a fixture, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all prevent the Collateral or any portion of the Collateral exceptpart thereof from being or becoming a fixture; (j) will keep, in each caseaccordance with generally accepted accounting principles, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for consistently applied, accurate and complete hooks and records concerning the benefit of Collateral, will ▇▇▇▇ any and all such records concerning the Collateral, at Secured Party’s request to indicate the Security Interest and will permit Secured Party or its agents to audit and make extracts from and copy such records or any of Debtor’s books, ledgers, reports, correspondence, or other records and will furnish Secured Party with financial statements and such other information concerning Debtor as Secured Party may from time to time request; (k) upon demand, will deliver to Secured Party any schedules, invoices, shipping documents, delivery receipts, purchase orders, contract or other documents representing or relating to this Security Agreement purchases or related agreements. Debtor shall other acquisitions of Collateral; (l) will not, without Secured Party’s written consent, make or agree to make any alteration, modification or cancellation of, or substitution for, or credits, adjustments or allowance on, any Collateral, (m) will promptly notify Secured Party of any attachment default by any Account Debtor in payment or other legal process levied against performance of its obligations with respect to any of the Collateral and any information received by any Debtor relative to Collateral; (n) will promptly notify the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without the prior written consent event of Secured Party, Debtor will not sell, transfer, assign (by operation of law a materially adverse change in business or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value other occurrences which could materially and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, adversely affect the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all unpaid claims and charges (including claims for labor, materials and supplies) whatsoever;
(k) Debtor will keep and maintain the Collateral in good condition, working order and repair and from time to time will make or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the ordinary wear and tear of its normal and expected use in Debtor's business in accordance with Debtor's policies as then in effect (provided that no changes are made to Debtor's policies as in effect on the date hereof that would be materially adverse to the interests of the Secured Party), ; and to) will comply with all laws, statutes and regulations pertaining to immediately upon request furnish such additional collateral in the use event the Collateral is inadequate or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than thirty (30) days delinquent and will in a timely manner record and assign to Secured Party, to the extent and at the earliest time permitted by law, any such liens and rights to under such guaranties;
(m) Intentionally omitted;deems itself insecure.
Appears in 1 contract
Sources: Loan Agreement (Radiant Energy Corp)
COVENANTS OF DEBTOR. The Until payment in full of all Secured Obligations, ------------------- Debtor covenants and agrees that, unless Secured Party shall have otherwise consented in writing:
(a) Debtor will not move or permit shall execute and take such action as may reasonably be requested from time to be moved time by Secured Party, including the Collateral or any portion thereof to any location other than that set forth in Section 4(f) hereof or locations established in compliance with Section 5(b) hereof without the prior written consent execution and delivery of the Secured Party financing statements and certificates of title, and the prior filing of a financing statement with the proper office and in the proper form statements, as may be necessary to perfect or continue the perfection (without loss of priority) of and maintain the security interests created herein, which filing shall be satisfactory in form, substance and location interest granted to Secured Party prior hereby. In the event Debtor refuses or fails to timely execute and deliver any financing statement reasonably requested by Secured Party, Debtor authorizes Secured Party to file any such filing;financing statements without the signature of Debtor.
(b) Debtor will shall not voluntarily misuse, abuse, waste or involuntarily change its name, identity, corporate structure, or location of its chief executive office or any of its other places of business, unless in any such case: (i) Debtor shall have first received the prior written consent of Secured Party, (ii) Debtor shall have executed and caused allow to be filed financing statements with the proper offices and in the proper form to perfect or continue the perfection (without loss of priority) of the security interests created herein, which filing shall be satisfactory in form, substance and location to Secured Party prior to such filing, and (iii) Debtor shall have delivered to Secured Party any other documents required by Secured Party in a form and substance satisfactory to Secured Party;
(c) Intentionally Omitted;
(d) Debtor will promptly, and in no event later than 21 days after a request by Secured Party, procure or execute and deliver all further instruments and documents (including, without limitation, notices, legal opinions, financing statements, mortgagee waivers, landlord disclaimers and subordination agreements) necessary or appropriate to and take any other actions which are necessary or, in the judgment of Secured Party, desirable or appropriate to perfect or to continue the perfection, priority and enforceability of Secured Party's security interests in deteriorate the Collateral, to enable except for ordinary wear and tear. Secured Party to exercise may examine and enforce its rights and remedies hereunder with respect to any inspect the Collateral, wherever located, during normal business hours and upon at least 48 hours' prior notice to protect Debtor. Debtor will insure the Collateral against the rights, claims or interests of third persons, or all risks to effect or to assure further the purposes and provisions of this Security Agreement, and will pay all reasonable costs incurred in connection therewith. Without limiting the generality of the foregoing, Debtor will: (i) mark conspicuously each item of chattel paper and each other contra▇▇ ▇ncluded in which the Collateral with a legend, in form and substance satisfactory to Secured Party, indicating that such chattel paper and other contracts are subject to the security interests granted hereby; (ii) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable, which Secured Party may reasonably request in order to perfect and preserve the perfection and priority of the security interests granted or purported to be granted hereby; (iii) if any Collateral shall be evidenced by a promissory note or other instrument or chattel paper (other than checks received by any Debtor is exposed in the ordinary course of business)course, deliver and pledge to Secured Party such note or instrument or chattel paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party; (iv) if any Collateral is at any time in the possession or control of any warehouseman, bailee, consignee or any of Debtor's agents or processors, Debtor shall notify such warehouseman, bailee, consignee, agent or processor of the security interests created or purported to be created hereby, shall cause such warehouseman, bailee, consignee, agent or processor to execute any financing statements or other documents which Secured Party may request, and, upon the request of Secured Party after the occurrence and during the continuation of an Event of Default, shall instruct such person to hold all such Collateral for Secured Party's account subject to Secured Party's instructions; (v) deliver and pledge to Secured Party all securities and instruments (other than checks received by Debtor in the ordinary course of business) constituting Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignments, all in form and substance satisfactory to Secured Party; and (vi) at the request of Secured Party, deliver to Secured Party any and all certificates of title, applications for title or similar evidence of ownership of all Collateral and shall cause Secured Party to be named as lienholder on any such certificate loss payee thereunder to the extent of title or other evidence of ownership;its interest therein.
(ec) without the prior written consent of Secured Party, Debtor will not in any way encumber, or hypothecate, or create or permit to exist, any lien, security interest, charge or encumbrance or adverse claim upon or other interest in the Collateral, except for liens permitted by and subject to the terms of Section 9.2 of the Consulting Contract ("Permitted Liens"), and the Debtor will defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein, except as expressly provided herein. Debtor will not permit any Lien Notices to exist or be on file in any public office with respect to all or any portion of the Collateral except, in each case, for Lien Notices of holders of Permitted Liens or except as may have been filed by or for the benefit of Secured Party relating to this Security Agreement or related agreements. Debtor shall promptly notify Secured Party of any attachment or other legal process levied against any of the Collateral and any information received by any Debtor relative to the Collateral, which may in any material way affect the value of the Collateral or the rights and remedies of Secured Party in respect thereto;
(f) without the prior written consent of Secured Party, Debtor will not sell, transfer, assign (by operation of law or otherwise), exchange or otherwise dispose of all or any portion of the Collateral or any interest therein, except that the Debtor may sell worn-out or obsolete equipment provided that the proceeds thereof are applied to the Secured Obligations or used to purchase new collateral of equal or greater value and the Secured Party shall be granted a first priority security interest therein. If the proceeds of any such prohibited sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to Secured Party to be held as Collateral hereunder (with all necessary or appropriate endorsements). If the Collateral, or any part thereof or interest therein, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Secured Party shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Debtor will hold the proceeds thereof in a separate account for Secured Party's benefit. Debtor will, at Secured Party's request, transfer such proceeds to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing statements or fixture filings, and continuations thereof and amendments thereto, relative to all or any part of the Collateral, without the signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Consulting Contract, Debtor will not enter into any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement, except for the Consulting Contract and any documents, instruments or agreements related thereto or issue any securities which may materially restrict or inhibit Secured Party's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default;
(i) The Debtor shall cause to be maintained insurance on each Project and related assets with such coverages and in such amounts as are reasonably satisfactory to Secured Party, including without limitation, loss of business income coverage, and naming Secured Party as an additional insured, lender loss payee and mortgagee, if applicable. Upon request, the Debtor shall provide to the Secured Party certificates of insurance or copies of insurance policies evidencing that such insurance is in effect at all times.;
(j) Except as expressly permitted by the Consulting Contract, the Debtor will pay and discharge all taxes, assessments and governmental charges or levies against the Collateral imposed upon it or its property or assets, prior to delinquency thereof the date on which penalties attach thereto, and will keep the Collateral free of all unpaid lawful claims and charges (including claims for laborwhich, materials and supplies) whatsoever;
(k) Debtor will keep and maintain the Collateral in good conditionif unpaid, working order and repair and from time to time will make would become a lien or cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable toward such end. Debtor will not misuse or abuse charge upon the Collateral, except to the extent that the imposition of any such tax, assessment, charge or waste levy or allow it to deteriorate except for the ordinary wear and tear validity of its normal and expected use any such claim is being contested in good faith by the appropriate proceedings.
(d) Debtor shall notify Secured Party within ten (10) days of any change in (i) Debtor's corporate name, (ii) Debtor's business in accordance with or legal structure, or (iii) Debtor's policies as then in effect (provided that no changes are made to place of business or chief executive office if the Debtor has more than one place of business. The Collateral will at all times be kept by Debtor at Debtor's policies as in effect on the date hereof that would be materially adverse to the interests places of business within and outside of the State of California at the addresses listed on Exhibit B hereto, and shall not, without prior written notice thereof to Secured Party), and will comply with all lawsbe moved therefrom except, statutes and regulations pertaining prior to the use or ownership of the Collateral. Debtor will promptly notify Secured Party regarding any material loss or damage to any material Collateral or portion thereof;
(l) The Debtor will take all actions consistent with reasonable business judgment or, upon the occurrence of an Event of Default, directed by for the storage of Collateral at locations within the continental United States other than that set forth above if (i) Debtor gives Secured Party in Secured Party' s sole and absolute discretion, to create, preserve and enforce any liens or guaranties available to secure or guaranty payments due Debtor under any contracts or other agreements with third parties which constitute Collateral, will not voluntarily permit any such payments to become more than written notice of a new storage location at least thirty (30) days delinquent prior to storing Collateral at such location, (ii) Secured Party's security interest in such Collateral is and continues to be a duly perfected lien thereon, (iii) neither Secured Party's nor Debtor's right of entry upon the premises where such Collateral is stored, or its right to remove the Collateral therefrom, is in any way restricted, (iv) the owner of such premises agrees with Secured Party not to assert any landlord's, bailee's or other lien in respect of the Collateral for unpaid rent or storage charges and (v) all negotiable documents and receipts in respect of any Collateral maintained at such premises are properly delivered to Secured Party. No Collateral is now, nor shall any Collateral at any time or times hereafter be, stored with a bailee, warehouseman or similar party without Secured Party's prior written consent and, if Secured Party gives such consent, Debtor will in a timely manner record concurrently therewith cause any such bailee, warehouseman or similar party to issue and assign deliver to Secured Party, in form and substance acceptable to the extent and at the earliest time permitted by lawSecured Party, any such liens and rights to under such guaranties;
(m) Intentionally omitted;warehouse receipts therefor in Secured Party's name.
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Sources: Security Agreement (Anchor Pacific Underwriters Inc)