REPRESENTATIONS AND WARRANTIES OF DEBTOR. (a) Debtor shall at all times maintain the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder. (b) Debtor shall not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Party. (c) Debtor shall keep and preserve its equipment, inventory and other tangible Collateral in good condition, repair and order. (d) Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Secured Party’s security interest. (e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof. (f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral. (g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement. (h) To the extent that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party. (i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtor. (j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 3 contracts
Sources: Consent Agreement (Hightimes Holding Corp.), Security Agreement (Hightimes Holding Corp.), Consent Agreement
REPRESENTATIONS AND WARRANTIES OF DEBTOR. In order to induce Lender to enter into this Amendment, Debtor, for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows:
(a) Debtor shall at has full power and authority to enter into this Amendment and to incur and perform all times maintain obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as a condition to the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in validity of this Amendment or the Collateral in favor performance of any of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. obligations of Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) There is no fact known to Debtor shall or which should be known to Debtor which Debtor has not transferdisclosed to Lender on or prior to the date of this Amendment which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or any representation, pledgewarranty, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Partyrecital contained in this Amendment.
(c) Except as expressly set forth in this Amendment, Debtor acknowledges and agrees that neither the execution and delivery of this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall keep in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and preserve its equipment, inventory and other tangible Collateral in good condition, repair and orderobligations of Debtor under the terms of the Loan Documents.
(d) Debtor shallhas no defenses, within ten (10) days affirmative or otherwise, rights of obtaining knowledge thereofsetoff, advise the Secured Party promptlyrights of recoupment, in sufficient detailclaims, counterclaims, actions or causes of action of any material adverse change kind or nature whatsoever against Lender, directly or indirectly, arising out of, based upon, or in any manner connected with, the Collateraltransactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of any of the occurrence terms or conditions of the Loan Documents. To the extent any such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and released. Debtor hereby acknowledges and agrees that the execution of this Amendment by Lender shall not constitute an acknowledgment of or admission by Lender of the existence of any event claims or of liability for any matter or precedent upon which would have a material adverse effect on the value of the Collateral any claim or on the Secured Party’s security interestliability may be asserted.
(e) Debtor shall promptly execute represents and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent warrants that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date hereof no Events of execution, and all references herein Default (as defined in the Note) exist under the Loan Documents or have occurred prior to the “Debtor” shall be deemed to include each Additional Debtordate hereof.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 3 contracts
Sources: Secured Promissory Note Amendment (Guided Therapeutics Inc), Secured Promissory Note Amendment (Guided Therapeutics Inc), Secured Promissory Note Amendment (Guided Therapeutics Inc)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. In order to induce Lender to enter into this Amendment, Debtor, for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows:
(a) Debtor shall at has full power and authority to enter into this Amendment and to incur and perform all times maintain obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as a condition to the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in validity of this Amendment or the Collateral in favor performance of any of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. obligations of Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) There is no fact known to Debtor shall or which should be known to Debtor which Debtor has not transferdisclosed to Lender on or prior to the date of this Amendment which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or any representation, pledgewarranty, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Partyrecital contained in this Amendment.
(c) Except as expressly set forth in this Amendment, Debtor acknowledges and agrees that neither the execution and delivery of this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall keep in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and preserve its equipment, inventory and other tangible Collateral in good condition, repair and orderobligations of Debtor under the terms of the Loan Documents.
(d) Debtor shallhas no defenses, within ten (10) days affirmative or otherwise, rights of obtaining knowledge thereofsetoff, advise the Secured Party promptlyrights of recoupment, in sufficient detailclaims, counterclaims, actions or causes of action of any material adverse change kind or nature whatsoever against Lender, directly or indirectly, arising out of, based upon, or in any manner connected with, the Collateraltransactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of any of the occurrence terms or conditions of the Loan Documents. To the extent any such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and released. Debtor hereby acknowledges and agrees that the execution of this Amendment by Lender shall not constitute an acknowledgment of or admission by Lender of the existence of any event claims or of liability for any matter or precedent upon which would have a material adverse effect on the value of the Collateral any claim or on the Secured Party’s security interestliability may be asserted.
(e) Debtor shall promptly execute represents and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent warrants that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date hereof no Events of execution, and all references herein Default (as defined in the Note) exist under the Loan Documents or have occurred prior to the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.date hereof
Appears in 2 contracts
Sources: Secured Promissory Note (Guided Therapeutics Inc), Secured Promissory Note Amendment (Guided Therapeutics Inc)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. (a) The Debtor shall at hereby warrants, covenants and agrees that:
4.1 The Debtor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.
4.2 The Debtor has the corporate power to execute, deliver and carry out this Security Agreement and to incur the Obligations, and has taken all times necessary corporate action to authorize the execution, delivery and performance of this Security Agreement and the incurring of the Obligations.
4.3 The execution and delivery of this Security Agreement and compliance by the Debtor with any of the terms and provisions hereof or of any of the other agreements or instruments referred to herein or therein, will not, on the date hereof, violate any provision of any existing law or regulation or any writ or decree of any court or governmental instrumentality or of the Certificate of Formation or Operating Agreement of the Debtor or any agreement, trust, indenture, covenant, lease, license, permit, instrument or other obligation to which the Debtor is a party or which is binding upon it or its assets.
4.4 The Debtor will maintain the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in such title to all of the Collateral in favor of as was delivered to Debtor by the Secured Party until this Agreement and pursuant to the Security Interest hereunder shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entitiesAsset Purchase Agreement. Debtor shall safeguard not subject the Collateral to any mortgage, pledge, lease, trust, bailment, lien, security interest, encumbrance, charge or title retention or other security agreement or arrangement (each a "Lien" and protect collectively "Liens") beyond those to which the Collateral was subject when it was delivered to Debtor by the Secured Party pursuant to the Asset Purchase Agreement. Without the prior written consent of Secured Party, Debtor shall not enter into any agreement with a bank or other financial institution or other person (a "Lender") with respect to a financing which would require the Debtor to ▇▇▇▇▇ ▇ ▇▇▇▇ to such Lender that is prior to, or pari passu with, the Lien granted hereunder to the Secured Party. ---- ----- The Debtor will defend the Collateral against all claims and demands of all persons other than Secured Party at any time claiming the same or any interest therein which interest arises on or after the date hereof.
4.5 The Collateral for will be kept at the account Debtor's principal place of business in Shelton, Connecticut. The Debtor will not remove the Collateral from said location without written consent of the Secured Party. The Debtor agrees to notify the Secured Party in advance of any change of its mailing address or principal place of business in order that a prompt refiling of any outstanding financing statements or other notices may be made, if necessary prior to the change.
4.6 At the request of the AgentSecured Party, the Debtor will sign will, now and deliver to in the Agent on behalf of future, join with the Secured Party at any time or from time to time in executing one or more financing statements pursuant to the UCC Uniform Commercial Code in form reasonably satisfactory to the Secured Party and will pay the cost of filing and recording the same in all public offices wherever filing is, or and/or recording is deemed by the Secured Party to be, be necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunderdesirable.
(b) 4.7 Other than the licensing or use of its software products in the ordinary course of business, the Debtor shall will not transfersell, pledgeexchange, hypothecate, encumber, license, sell license or otherwise dispose of the Collateral, or any interest therein, without the express written authorization of the Collateral without the prior written consent of Secured Party.
(c) 4.8 The Note and this Security Agreement securing the Note have all been duly authorized, executed and delivered by Debtor shall keep and preserve its equipmentconstitute valid and legally binding obligations of Debtor enforceable against Debtor in accordance with their terms, inventory and other tangible Collateral in good condition, repair and order.
(d) Debtor shall, within ten (10) days of obtaining knowledge thereof, advise subject to the Secured Party promptly, in sufficient detail, provisions of any material adverse change in the Collateralapplicable bankruptcy, and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Secured Party’s security interest.
(e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements insolvency or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereoflaws generally affecting creditors' rights.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
Sources: Security Agreement (Information Management Associates Inc)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby represents and warrants that:
(a) The Debtor shall at all times maintain is a limited liability company duly organized under the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor laws of the Secured Party until State of Delaware, is validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documents, has the requisite power and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Agreement Mortgage and the Security Interest hereunder each other Project Document to which it is or shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereundera party.
(b) The execution, delivery and performance of this Mortgage and each other Project Document to which the Debtor is or shall be a party and the consummation of the transactions herein and therein contemplated will not transfer(x) violate any provision of law, pledgeany order of any court or agency of government, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without Organizational Documents of the prior written consent Debtor, or any indenture, agreement or other instrument to which the Debtor is a party or by which it or any of Secured Partyits property is bound or to which it or any of its property is subject, (y) be in conflict with or result in a breach of or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrument, or (z) result in the imposition of any lien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances.
(c) There is no action or proceeding pending or, to the best of the Debtor’s knowledge, after diligent inquiry, threatened by or against the Debtor by or before any court or administrative agency that would adversely affect the ability of the Debtor to perform its obligations under this Mortgage or any other Project Document to which it is or shall keep be a party. Such knowledge is based upon the knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Senior Vice President of the Parent, and preserve its equipment, inventory a person employed by the Parent with actual knowledge of the Project and other tangible Collateral of the matters set forth in good condition, repair and orderthis paragraph.
(d) The Debtor shallhas obtained all authorizations, within ten (10) days consents and approvals of obtaining knowledge thereof, advise governmental bodies or agencies required to be obtained by the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, and Debtor as of the occurrence Closing Date in connection with the execution and delivery of any event this Mortgage and each other Project Document to which would have the Debtor is a material adverse effect on party or in connection with the value performance of the Collateral or on obligations of the Secured Party’s security interestDebtor hereunder and under each of the Project Documents.
(e) Debtor shall promptly execute This Mortgage and deliver the other Project Documents to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has Debtor is a party (x) have been granted a security interest hereunderduly authorized by all necessary action on the part of the Debtor, substantially (y) have been duly executed and delivered by the Debtor, and (z) constitute the legal, valid and binding obligations of the Debtor, enforceable against the Debtor in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreementaccordance with their respective terms, other than as stated therein, shall be subject to all limitations on enforceability resulting from bankruptcy, insolvency and principles of the terms and conditions hereofequity.
(f) The assumption by the Debtor shall take all steps reasonably necessary of its obligations hereunder will result in a direct financial benefit to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the CollateralDebtor.
(g) The Debtor shall not change has power to enter into and perform this Mortgage, to create, pledge and grant the mortgage, pledge, assignment and security interest in the Mortgaged Property as provided in this Mortgage, and to own its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect property and continue the perfection of the Security Interests granted and evidenced by this Agreementassets.
(h) To the extent that any Collateral The Debtor is vested with a good and marketable leasehold interest in the possession Facility pursuant to the Ground Lease, subject to no mortgage, lien, charge, pledge, assignment, security interest, conditional sale agreement or encumbrance of any third partykind whatsoever, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Partyother than Permitted Encumbrances.
(i) The Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”)is, The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of executionClosing Date, and after giving effect to all references herein to instruments evidencing or securing the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor Obligations will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably requestbe, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreementa solvent condition.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor represents and warrants, and, so long as this Security Agreement is in effect, shall be deemed continuously to represent and warrant that: (a) Debtor shall at all times maintain the Security Interests provided for hereunder as valid any financial statements and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. Debtor hereby agrees other information heretofore delivered to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver any representation, warranty or statement heretofore made or furnished to the Agent Secured Party, by or on behalf of the Debtor or any endorser, guarantor or any other party liable for, or whose assets or any interest therein secures, the payment or performance of all or any portion of the Obligations (collectively, the “Third Party Obligor”), in connection with the Obligations, this Security Agreement or any document, instrument or agreement evidencing, securing or otherwise directly or indirectly relating to any of the Obligations, were and are true and accurate in all material respects when so delivered, made or furnished and, in the case of financial statements, were prepared in accordance with generally accepted accounting principles consistently applied in preceding periods; (b) there has been no material, adverse change in the business or properties, or the condition or operations, financial or otherwise, of the Debtor or any Third Party Obligor since the date on which any of the financial statements, information, representations, warranties or statements described in clause (a) above were delivered, made or furnished to the Secured Party Party; (c) the Debtor is the owner of or has the right to grant the Security Interest in the Collateral free of any security interests or other encumbrances, except as specified in Schedule A attached hereto and made a part hereof; (d) the Debtor’s business address and chief executive office are at the Debtor’s address specified below or in Schedule A; and the Debtor’s records concerning the Collateral are kept at the Debtor’s such address; and any time and all tradenames, division names, assumed names or other names under which the Debtor transacts any part of its business are specified in Schedule A attached hereto and made a part hereof; (e) each Account and Chattel Paper constituting the Collateral is genuine and enforceable in accordance with its terms against the party obligated to pay it (hereinafter called the “Account Debtor”); and no Account Debtor has any defense, setoff, claim or counterclaim against the Debtor which can be asserted against the Secured Party, whether in any proceeding to enforce the Collateral or otherwise; (f) the amounts represented from time to time one or more financing statements pursuant to by the UCC in form reasonably satisfactory Debtor to the Secured Party as owing by each Account Debtor or by all Account Debtors will be and will pay are the cost of filing the same in all public offices wherever filing is, correct amounts actually and unconditionally owing by such Account Debtor or is deemed by the Secured Party to be, necessary or desirable to effect the rights Debtors individually and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) Debtor shall not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Party.
(c) Debtor shall keep and preserve its equipment, inventory and other tangible Collateral in good condition, repair and order.
(d) Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateralaggregate, except for normal cash discounts where applicable; and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Secured Party’s security interest.
(e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type the Collateral which consists of organization, jurisdiction of organization, organizational identification number (if it has one), legal Equipment or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, Inventory is located at the time of such written notification, such Debtor provides Debtor's address specified below and at any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is other locations specified in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory Schedule A attached hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtora part hereof.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
Sources: Security Agreement (Simply, Inc.)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby warrants and agrees with the Lender as follows:
(a) The Debtor shall at all times maintain will not, during the Security Interests provided for hereunder as valid and perfected first priority liens and currency of this Agreement, give any further or other security interests in agreement covering the Collateral in favor of to any party other than the Secured Party until this Agreement Lender and the Security Interest hereunder shall no financing statement (other than any which may be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent filed on behalf of the Secured Party at Lender) covering any time of the Collateral is, now or from time will be on file in any public office while this Security Agreement remains outstanding, save that the Debtor may create a purchase money security interest in collateral hereafter acquired but only if such interest is perfected and notification thereof given to time one or more financing statements the Lender pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality provisions of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereundergoverning statutes in that behalf.
(b) That except for the security interest granted hereby, the Debtor shall not transferis, pledgeor, hypothecate, encumber, license, sell or otherwise dispose of any as to Collateral acquired after the date hereof (save a purchase money security interest as above described) will be the owner of the Collateral, free from any adverse lien, security interest or encumbrance, and agrees that it will defend the Collateral without against all claims and demands of all persons at any time claiming the prior written consent of Secured Partysame or any interest therein.
(c) The Debtor shall keep from time to time forthwith on request furnish to the Lender in writing all information requested relating to the Collateral and preserve its equipment, inventory the Lender shall be entitled from time to time to inspect the aforesaid collateral and other tangible to take temporary custody of and make copies of all documents relating to the accounts receivable and for such purposes the Lender shall have access to all premises occupied by the Debtor or where the Collateral in good condition, repair and orderor any of it may be found.
(d) The Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, and of the occurrence of any event which would have a material adverse effect shall from time to time forthwith on the value Lender's request do, make and execute all such financing statements, further assignments, documents, acts, matters and things as may be required by the Lender of or with respect to the Collateral or on any part thereof or as may be required to give effect to these presents, and the Secured Party’s security interestDebtor hereby constitutes and appoints the Manager or acting Manager for the time being of the above-mentioned office of the Lender, or any receiver appointed by the Court or Lender as hereafter set out, the true and lawful attorney of the Debtor irrevocably with full power of substitution to do, make and execute all such assignments, documents, acts, matters or things with the right to use the name of the Debtor whenever and wherever it may be deemed necessary or expedient.
(e) The Debtor shall promptly execute keep the inventory and deliver equipment insured against loss by fire and such other risks as the Lender may reasonably require for their full insurable value and will pay all premiums in connection with such insurance. All policies of insurance and the proceeds thereof will be held in trust by the Debtor for the benefit of the Lender under the provisions of this Agreement. If the Debtor neglects to Secured Party provide such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicableinsurance, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to Lender may obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as charge the premiums therefor to the Debtor, for all purposes hereof as fully and together with interest at the rate currently charged to the same extent as if it were an original signatory hereto and shall be deemed Debtor under its obligations to have been made the representations, warranties and covenants set forth herein as of Lender at the date of execution, and all references herein to payment of the “Debtor” shall be deemed to include each Additional Debtorpremium by the Lender.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF DEBTOR. In order to induce Lender to enter into this Amendment, Debtor, for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows:
(a) Debtor shall at has full power and authority to enter into this Amendment and to incur and perform all times maintain obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as a condition to the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in validity of this Amendment or the Collateral in favor performance of any of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. obligations of Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) There is no fact known to Debtor shall or which should be known to Debtor which Debtor has not transferdisclosed to Lender on or prior to the date of this Amendment which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or any representation, pledgewarranty, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Partyrecital contained in this Amendment.
(c) Except as expressly set forth in this Amendment, Debtor acknowledges and agrees that neither the execution and delivery of this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall keep in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and preserve its equipment, inventory and other tangible Collateral in good condition, repair and orderobligations of Debtor under the terms of the Loan Documents.
(d) Debtor shallhas no defenses, within ten (10) days affirmative or otherwise, rights of obtaining knowledge thereofsetoff, advise the Secured Party promptlyrights of recoupment, in sufficient detailclaims, counterclaims, actions or causes of action of any material adverse change kind or nature whatsoever against Lender, directly or indirectly, arising out of, based upon, or in any manner connected with, the Collateraltransactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of any of the occurrence terms or conditions of the Loan Documents. To the extent any such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and released. Debtor hereby acknowledges and agrees that the execution of this Amendment by Lender shall not constitute an acknowledgment of or admission by Lender of the existence of any event claims or of liability for any matter or precedent upon which would have a material adverse effect on the value of the Collateral any claim or on the Secured Party’s security interestliability may be asserted.
(e) Debtor shall promptly execute and deliver Except as may have been previously disclosed to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third partyLender, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral represents and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein warrants that as of the date hereof no Events of execution, and all references herein Default (as defined in the Note) exist under the Loan Documents or have occurred prior to the “Debtor” shall be deemed to include each Additional Debtordate hereof.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor hereby represents and warrants as of the date hereof and as of the date of execution of each Collateral Schedule hereto that:
(a) Debtor shall at all times maintain is duly organized, existing and in good standing under the Security Interests provided for hereunder as valid and perfected first priority liens and security interests laws of the State set forth in the Collateral first paragraph of this Security Agreement, has its chief executive offices at the location set forth in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agentsuch paragraph, Debtor will sign and deliver and, to the Agent on behalf best of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC Debtor's knowledge, is duly qualified and licensed in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices every jurisdiction wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral carry on its present business and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.operations;
(b) Debtor shall not transferhas adequate power and capacity to enter into, pledgeand to perform its obligations, hypothecateunder this Security Agreement, encumbereach Note and any other documents evidencing, licenseor given in connection with, sell any of the Indebtedness (all of the foregoing being hereinafter collectively referred to as the "Loan Documents");
(c) The Loan Documents have been duly authorized, executed and delivered by Debtor and constitute legal, valid and binding agreements enforceable in accordance with their terms, except to the extent that the enforcement of remedies may be limited under applicable bankruptcy and insolvency laws;
(d) No approval, consent or otherwise dispose withholding of objections is required from any governmental authority or instrumentality with respect to the entry into, or performance by, Debtor of any of the Collateral without the prior written consent of Secured Party.Loan Documents, except such as may have already been obtained;
(ce) The entry into, and performance by, Debtor shall keep and preserve its equipmentof the Loan Documents will not (i) violate any of the organizational documents of Debtor or any judgment, inventory and order, law or regulation applicable to Debtor, or (ii) result in any breach of, constitute a default under, or result in the creation of any lien, claim or encumbrance (except for the lien created by Secured Party under this Security Agreement) pursuant to, any indenture mortgage, deed of trust, bank loan, credit agreement, or other tangible Collateral in good condition, repair and order.agreement or instrument to which Debtor is a party;
(df) There are no suits, or proceedings pending or threatened in court or before any commission, board or other administrative agency against or affecting Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptlywhich could, in sufficient detailthe aggregate, of any material adverse change in the Collateral, and of the occurrence of any event which would have a material adverse effect on Debtor, its business or operations, or its ability to perform its obligations under the value of the Collateral or on the Secured Party’s security interest.
(e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.Loan Documents;
(g) All financial statements of Debtor shall not change and any of its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice affiliates delivered to the Secured Party of such change andhave been prepared in accordance with generally accepted accounting principles, at and since the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection date of the Security Interests granted and evidenced by this Agreement.most recent financial statement, there has been no material adverse change;
(h) To the extent that any Collateral The Equipment pledged hereunder is and will remain in the possession of any third party, Debtor shall join good condition in accordance with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured PartytheLease.
(i) Debtor shall cause such subsidiary and/or assign is the sole and lawful owner of the Lease and Equipment, has good and marketable title to the Lease and Equipment, free and clear of any security interests, liens, and other encumbrances and rights, except as provided for in this Security Agreement, and has the sole right and lawful authority to grant to Secured Party the security interest described in this Security Agreement; and
(j) The Collateral is and will remain free and clear of all liens, claims and encumbrances of every kind, nature and description except for the lien of this Security Agreement.
(k) With respect to each Lease pledged hereunder:
(i) the Lease is genuine and represents a valid obligation of the lessee and any other party (including, but not limited to, any Guarantors) named in any of the Lease documentation (each, a "Lease Party"); (ii) each Lease Party is bona fide and in good standing; (iii) the Lease documentation delivered by Debtor to Secured Party correctly reflects the entire agreement between Debtor and each Lease Party with respect to the Lease; (iv) Debtor has delivered to Secured Party all originals of the Lease documentation, except for those in the possession or control of a Lease Party; (v) all names, addresses, amounts, dates, signatures and other statements and facts contained in the Lease documentation are genuine, true and correct; (vi) all Lease documentation has been duly authorized, executed and delivered by each Lease Party thereto and represents the legal, valid and binding obligation of such Lease Party, enforceable under all applicable laws against such Lease Party in accordance with its terms, except to the extent that enforcement of remedies may be limited by applicable bankruptcy, insolvency or similar laws; (vii) the Lease is not in default and is and will be free from any liens, setoffs, counterclaims and any and all other defenses; (viii) there are no claims pending or threatened by any Lease Party against Debtor in connection with the Lease or otherwise; (ix) the Lease documentation evidences a valid reservation of title to, or first lien on, the Equipment and all other property that is the subject of the Lease that is effective against all persons; (x) Debtor has properly and timely filed or recorded any Lease documentation or other instruments as may be required under all applicable filing and recording statutes, and has obtained all necessary subordinations, releases and/or waivers, to immediately become a party hereto ensure that Debtor's lien or other interest in the Equipment and all other property that is the subject of the Lease is and will be superior to that of all other persons; (an “Additional Debtor”), The Additional xi) Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as has the right to assign the Lease to Secured Party may reasonably request. Upon delivery of and the foregoing assignment conveys to Secured PartyParty good and valid title, the Additional Debtor shall be at law and become a party to this Agreement with the same rights and obligations as the Debtorin equity, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto Lease, free and shall be deemed to have been made the representationsclear of any and all liens, warranties claims and covenants set forth herein encumbrances of any kind or nature whatsoever and (xii) as of the date a Lease is assigned to Secured Party hereunder, (1) except April 1998 payment, no payment due under the Lease was more than ten (IO) days past due, (2) no nonpayment default was in existence thereunder, (3) Debtor has no knowledge that any Lease Party is asserting or has any basis to assert any defense, setoff, or counterclaim to its obligations under any Lease Document, (4) Debtor has not granted any extensions or waivers under the Lease during the period since the commencement date of executionthe Lease, (5) the Lease complies with all applicable usury laws, retail installment sales acts, truth-in-lending and truth-in-leasing laws and regulations and all references herein other applicable laws and regulations and (6) no consent of any Lease Party is required for Lessor to the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary assign or desirablegrant a security interest in, as Secured Party may reasonably requestapplicable, in order to perfect and protect any security interest granted the Lease or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this AgreementEquipment.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby represents and warrants that:
(a) The Debtor shall at all times maintain is a limited liability company duly organized under the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor laws of the Secured Party until State of Delaware, is validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documents, has the requisite power and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Agreement Mortgage and the Security Interest hereunder each other Project Document to which it is or shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereundera party.
(b) The execution, delivery and performance of this Mortgage and each other Project Document to which the Debtor is or shall be a party and the consummation of the transactions herein and therein contemplated will not transfer(x) violate any provision of law, pledgeany order of any court or agency of government, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without Organizational Documents of the prior written consent Debtor, or any indenture, agreement or other instrument to which the Debtor is a party or by which it or any of Secured Partyits property is bound or to which it or any of its property is subject, (y) be in conflict with or result in a breach of or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrument, or (z) result in the imposition of any lien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances.
(c) There is no action or proceeding pending or, to the best of the Debtor’s knowledge, after diligent inquiry, threatened by or against the Debtor by or before any court or administrative agency that would adversely affect the ability of the Debtor to perform its obligations under this Mortgage or any other Project Document to which it is or shall keep be a party. Such knowledge is based upon the knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Senior Vice President of the Parent, and preserve its equipment, inventory the person employed by the Parent with actual knowledge of the Project and other tangible Collateral of the matters set forth in good condition, repair and orderthis paragraph.
(d) The Debtor shallhas obtained all authorizations, within ten (10) days consents and approvals of obtaining knowledge thereof, advise governmental bodies or agencies required to be obtained by the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, and Debtor as of the occurrence Closing Date in connection with the execution and delivery of any event this Mortgage and each other Project Document to which would have the Debtor is a material adverse effect on party or in connection with the value performance of the Collateral or on obligations of the Secured Party’s security interestDebtor hereunder and under each of the Project Documents.
(e) Debtor shall promptly execute This Mortgage and deliver the other Project Documents to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has Debtor is a party (x) have been granted a security interest hereunderduly authorized by all necessary action on the part of the Debtor, substantially (y) have been duly executed and delivered by the Debtor, and (z) constitute the legal, valid and binding obligations of the Debtor, enforceable against the Debtor in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreementaccordance with their respective terms, other than as stated therein, shall be subject to all limitations on enforceability resulting from bankruptcy, insolvency and principles of the terms and conditions hereofequity.
(f) The assumption by the Debtor shall take all steps reasonably necessary of its obligations hereunder will result in a direct financial benefit to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the CollateralDebtor.
(g) The Debtor shall not change has power to enter into and perform this Mortgage, to create, pledge and grant the mortgage, pledge, assignment and security interest in the Mortgaged Property as provided in this Mortgage, and to own its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect property and continue the perfection of the Security Interests granted and evidenced by this Agreementassets.
(h) To the extent that any Collateral The Debtor is vested with a good and marketable leasehold interest in the possession Facility pursuant to the Ground Lease, subject to no mortgage, lien, charge, pledge, assignment, security interest, conditional sale agreement or encumbrance of any third partykind whatsoever, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Partyother than Permitted Encumbrances.
(i) The Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”)is, The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of executionClosing Date, and after giving effect to all references herein to instruments evidencing or securing the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor Obligations will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably requestbe, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreementa solvent condition.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. (a) a. Debtor shall at has full power and authority to enter into this Amendment and to incur and perform all times maintain the Security Interests provided for hereunder obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver a condition to the Agent on behalf validity of this Amendment or the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) Debtor shall not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose performance of any of the Collateral without the prior written consent obligations of Secured PartyDebtor hereunder.
(c) b. There is no fact known to Debtor shall keep or which should be known to Debtor which Debtor has not disclosed to Lenders on or prior to the date of this Amendment which would or could materially and preserve its equipmentadversely affect the understanding of Lenders expressed in this Amendment or any representation, inventory and other tangible Collateral warranty, or recital contained in good condition, repair and orderthis Amendment.
(d) c. Except as expressly set forth in this Amendment, Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, acknowledges and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Secured Party’s security interest.
(e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, agrees that neither the execution and delivery of a separate security agreement with respect this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and obligations of Debtor under the terms of the Loan Documents.
d. Debtor has no defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action of any kind or nature whatsoever against Lenders, directly or indirectly, arising out of, based upon, or in any manner connected with, the transactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) the execution of this Amendment and occurred, existed, was taken, permitted or begun in which the Secured Party has been granted a security interest hereunderaccordance with, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreementpursuant to, other than as stated therein, shall be subject to all or by virtue of any of the terms and or conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserveof the Loan Documents. To the extent any such defenses, enforce and collect any affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and accounts receivable in respect released. Debtor hereby acknowledges and agrees that the execution of this Amendment by Lenders shall not constitute an acknowledgment of or admission by Lenders of the Collateralexistence of any claims or of liability for any matter or precedent upon which any claim or liability may be asserted.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice e. Except as may have been previously disclosed to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third partyLenders, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral represents and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein warrants that as of the date hereof no Events of execution, and all references herein Default (as defined in the Note) exist under the Loan Documents or have occurred prior to the “Debtor” shall be deemed to include each Additional Debtordate hereof.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
Sources: Secured Promissory Note Amendment (Guided Therapeutics Inc)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. (a) Debtor shall at all times maintain the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. The Debtor hereby agrees to defend the same against the claims of any represents and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory warrants to the Secured Party and will pay as follows:
(a) There are no restrictions on the cost pledge or transfer of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality any of the foregoingCollateral, Debtor shall pay all fees, taxes and other amounts necessary to maintain than restrictions referenced on the Collateral and face of any certificates evidencing the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunderCollateral.
(b) The Debtor shall not transferis the legal, pledge, hypothecate, encumber, license, sell or otherwise dispose of any beneficial and record owner of the Collateral without Collateral, which is registered in the prior written consent name of Secured Partythe Debtor as of the date hereof.
(c) Debtor shall keep and preserve its equipment, inventory and other tangible Collateral in good condition, repair and orderThe Fone Securities represent one hundred percent (100%) of the equity shares of Fone.
(d) Debtor shallExcept as specified on Exhibit A attached hereto, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, Collateral is free and clear of any material adverse change in the Collateralsecurity interests, and of the occurrence pledges, liens, encumbrances charges, agreements, claims or other arrangements or restrictions of any event which would have a material adverse effect kind; and the Debtor will not incur, create, assume or permit to exist and pledge, security interest, lien, charge or other encumbrance of any nature whatsoever on the value any of the Collateral or assign, pledge or otherwise encumber any right to receive income from the Collateral. Except for such financing statements as may be described on Exhibit A attached hereto and made a part hereof, no financing statement covering the Secured Party’s security interestCollateral is on file in any public office, other than the financing statements filed pursuant to this Security Agreement.
(e) The Debtor shall promptly execute (or, with respect to the VAT Alternatives, Fone) has the right to transfer the Collateral free of any encumbrances and deliver the Debtor (or, with respect to Secured Party such further deedsthe VAT Alternatives, mortgagesFone) will defend the Debtor's title to the Collateral against the claims of all persons, assignmentsand any registration with, security agreementsor consent or approval to or action by, financing statements any federal, state or other instruments, documents, certificates governmental authority or regulatory body which was or is necessary for the validity of the pledge and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce grant of the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereofobtained.
(f) Upon the occurrence of a Debtor shall take Event of Default, no third party has any rights to receive notice of such default or the sale of the Collateral or any portion thereof, and no third party has rights to purchase all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect or any rights, claims, causes of action and accounts receivable in respect portion of the Collateral.
(g) Debtor shall not change its nameAll additional information, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect representations and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is warranties contained in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory Exhibit B attached hereto and shall be deemed to have been made the representationsa part hereof are true, warranties accurate and covenants set forth herein as of complete on the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtorhereof.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tanners Restaurant Group Inc)
REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor hereby warrants, represents, covenants and agrees that:
(a) The execution, delivery and performance of this Agreement are within Debtor's corporate powers, have been duly authorized, are not in contravention of law or the terms of Debtor's charter, bylaws, or other incorporation papers, or of any indenture, agreement or undertaking to which Debtor is a party or by which it is bound.
(b) Except for the security interests granted hereby and the Prior Lien, Debtor is, and as to Collateral to be acquired after the date hereof, will be, the owner of the Collateral free from any adverse lien, security interest or encumbrance or the like, and has full authority to use the same as Collateral; and Debtor agrees that it will defend the Collateral and proceeds thereof against the claims and demands of any person at any time claiming the same or any interest therein.
(c) Debtor will keep the Collateral in good condition and will not waste or destroy any of the same. Debtor will not use or permit any person to use the Collateral in a manner prohibited by law, in violation of any insurance policy, or in any manner inconsistent with the Secured Party's security interest.
(d) Debtor will immediately notify Secured Party of any loss or damage to the Collateral and will, at the option of Secured Party, pay to Secured Party directly upon receipt the proceeds of any insurance received as a result of such loss or damage (any such payment, however, not to affect Secured Party's security interest in such Collateral as long as any Obligations remain outstanding), provided that in the event such proceeds exceed the amount of the Obligations then outstanding, Debtor shall be entitled to retain such excess.
(e) Debtor will pay promptly when due all taxes and assessments upon the Collateral, upon the proceeds thereof, upon this Agreement, upon any note or notes evidencing Obligations, or otherwise due by Debtor. Debtor will deliver to Secured Party, on demand, certificates satisfactory to Secured Party evidencing the payment of such taxes and assessments.
(f) Debtor will not sell, offer for sale, transfer, or dispose of the Collateral or any interest in the Collateral other than in the ordinary course of business without the prior written consent of the Secured Party.
(g) Debtor has places of business only at, and all Collateral presently owned or hereafter acquired by Debtor, and all records relating thereto, will be kept only at its address first stated above. Whether or not any change in location violates the terms hereof, Debtor shall notify Secured Party not less than thirty (30) days before any change is intended to be made in the foregoing address(es).
(h) Debtor shall at all reasonable times maintain the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in the Collateral in favor of the Secured Party until this Agreement and the Security Interest hereunder shall be terminated. Debtor hereby agrees to defend the same against the claims of any and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one allow Secured Party, by or through any of its officers, agents, attorneys or accountants, to examine or inspect the Collateral wherever located. Debtor shall do, make, execute and deliver all such additional and further acts, things, deeds, assurances and instruments as Secured Party may require, to vest more financing statements pursuant completely in and assure to Secured Party its rights hereunder and in or to the UCC in form reasonably satisfactory Collateral.
(i) All information furnished to the Secured Party and concerning any of the Collateral or otherwise is or will pay be at the cost of filing time the same is furnished, accurate and correct in all public offices wherever filing is, or is deemed by the material respects and complete insofar as completeness may be necessary to give Secured Party to be, necessary or desirable to effect a true and accurate knowledge of the rights and obligations provided for hereinsubject matter. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish will deliver to Secured Party promptly at Secured Party's request at any time and from time to time, upon demandsuch schedules of Inventory, such releases Accounts, Equipment, General Intangibles and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) Debtor shall not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Party.
(c) Debtor shall keep and preserve its equipment, inventory and other tangible Collateral in good condition, repair and order.
(d) Debtor shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any material adverse change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the value of the Collateral or on the Secured Party’s security interest.
(e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action Leasehold Improvements as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement with respect be desirable to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of obtain information on the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structure, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
(i) Debtor shall cause such subsidiary and/or assign of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof as fully and to the same extent as if it were an original signatory hereto and shall be deemed to have been made the representations, warranties and covenants set forth herein as of the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtor.
(j) Debtor will from time shall have and maintain insurance at all times with respect to time promptly execute all Inventory and deliver Equipment against "all such further instruments and documents, and take all such further action as may be necessary or desirable, risks" as Secured Party may reasonably requestrequire, in such form, for such periods and written by such companies as may be satisfactory to Secured Party, such insurance to be payable to and adjustable with Secured Party and Debtor as their interest may appear. All policies of insurance shall provide for not less than ten (10) days' written minimum cancellation or amendment notice to Secured Party and at request of Secured Party shall be delivered to and held by it. Secured Party is hereby appointed as attorney irrevocable for Debtor in obtaining, adjusting, settling and canceling such insurance and endorsing any drafts. Secured Party may apply any proceeds of such insurance against any of the Obligations, whether or not the same have matured, in such manner and order of application as Secured Party may determine. In the event of failure to perfect provide insurance as herein provided, Secured Party may at Secured Party's option, (but shall not be obligated to) provide such insurance and protect Debtor shall pay to Secured Party, on demand, the cost thereof, and such obligation, shall constitute Obligations hereunder.
(k) Each Account will represent an undisputed bona fide indebtedness, in the face amount thereof, of an Account Debtor to Debtor. Except as provided for in the Purchase Agreement or the License Agreement, there will be no defenses, setoffs, contra-claims, or counter-claims of any security interest granted nature whatsoever to or against any Account. No agreement under which any deduction or discount may be claimed will be made with any Account Debtor except as shown on the original statement or invoice furnished Secured Party with reference thereto.
(l) Secured Party shall not be deemed to have assumed any liability or responsibility to Debtor or any third person for the correctness, validity or genuineness of any instruments or documents that may be released or endorsed by Secured Party to Debtor (which shall automatically be deemed to be without recourse to Secured Party in any event), or for the existence, character, quantity, quality, condition, value or delivery of any goods purported to be granted hereby represented by any such documents; and Secured Party, by accepting such security interest in the Collateral, or by releasing any Collateral to Debtor, shall not be deemed to have assumed any obligation or liability to any supplier or Account Debtor or to enable the any other third party, and Debtor agrees to indemnify and defend Secured Party to exercise and enforce their rights and remedies hereunder and with hold it harmless in respect to any Collateral claim or proceeding arising out of any matter referred to otherwise carry out the purposes of in this Agreementparagraph.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby represents and warrants to the Secured Party (a) that, except as set forth in Exhibit A attached hereto, the Debtor shall at all times maintain is, or to the Security Interests provided for hereunder as valid and perfected first priority liens and security interests in extent that certain of the Collateral in favor is to be acquired after the date hereof, will be, the owner of the Secured Party until Collateral free from any adverse lien, security interest or encumbrance; (b) that except for such financing statements as may be described on Exhibit A attached hereto and made a part hereof, no financing statement covering the Collateral is on file in any public office, other than the financing statements filed pursuant to this Security Agreement; (c) this Agreement and the Security Interest hereunder shall be terminated. Debtor transactions contemplated hereby agrees to defend the same against the claims of any have been duly and all persons and entities. Debtor shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Agent, Debtor will sign and deliver to the Agent on behalf of the Secured Party at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed validly authorized by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, Debtor shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interests hereunder, and Debtor shall obtain and furnish to Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interests hereunder.
(b) Debtor shall not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of Secured Party.
(c) Debtor shall keep and preserve its equipment, inventory and other tangible Collateral in good condition, repair and order.
Debtor; (d) Debtor shall, within ten (10) days of obtaining knowledge thereof, advise this Agreement has been duly executed and delivered by the Secured Party promptly, in sufficient detail, of any material adverse change in the CollateralDebtor, and this Agreement is the valid and binding obligations of the occurrence Debtor enforceable in accordance with its terms, subject as to enforceability to general principles of any event which would have a material adverse effect on equity and to bankruptcy, insolvency, moratorium, and other similar laws affecting the value enforcement of the Collateral or on the Secured Party’s security interest.
creditors' rights generally; (e) Debtor shall promptly execute and deliver to Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as Secured Party may from time to time request and may in its sole discretion deem necessary to perfect, protect or enforce the Secured Party’s security interest in the Collateral including, without limitation, if applicable, the execution and delivery of a separate security agreement this Agreement and the consummation by the Debtor of the other transactions contemplated by this Agreement do not and will not conflict with respect to each Debtor’s Intellectual Property (“Intellectual Property Security Agreement”) in which the Secured Party has been granted a security interest hereunder, substantially or result in a form reasonably acceptable to Secured Party which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all breach by the Debtor of any of the terms and conditions hereof.
(f) Debtor shall take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(g) Debtor shall not change its name, type of organization, jurisdiction of organization, organizational identification number (if it has one), legal or corporate structureprovisions of, or identity, or add any new fictitious name unless it provides at least 30 days prior written notice to the Secured Party of such change and, at the time of such written notification, such Debtor provides any financing statements or fixture filings necessary to perfect and continue the perfection of the Security Interests granted and evidenced by this Agreement.
(h) To the extent that any Collateral is in the possession of any third party, Debtor shall join with Secured Party in notifying such third party of the Secured Party’s security interest in such Collateral and shall use its best efforts to obtain an acknowledgement and agreement from such third party with respect to the Collateral, in form and substance reasonably satisfactory to Secured Party.
constitute a default under (i) Debtor shall cause such subsidiary and/or assign the Certificate of such Debtor to immediately become a party hereto (an “Additional Debtor”), The Additional Debtor shall also deliver such opinions Incorporation or by-laws of counsel, authorizing resolutions, good standing certificates, incumbency certificates, organizational documents, financing statements and other information and documentation as the Secured Party may reasonably request. Upon delivery of the foregoing to Secured Party, the Additional Debtor shall be and become a party to this Agreement with the same rights and obligations as the Debtor, for all purposes hereof each as fully and currently in effect, (ii) any indenture, mortgage, deed of trust, or other material agreement or instrument to which the same extent as if Debtor is a party or by which it were an original signatory hereto and shall be deemed or any of its properties or assets are bound, or (iii) to its knowledge, any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any court, United States federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over the Debtor or any of its properties or assets, except such conflict, breach or default which would not have been made the representations, warranties and covenants set forth herein as of the date of execution, and all references herein to the “Debtor” shall be deemed to include each Additional Debtoror result in a Material Adverse Effect.
(j) Debtor will from time to time promptly execute and deliver all such further instruments and documents, and take all such further action as may be necessary or desirable, as Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce their rights and remedies hereunder and with respect to any Collateral or to otherwise carry out the purposes of this Agreement.
Appears in 1 contract