REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations, covenants and warranties, which shall be deemed to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any Obligation: (a) We are a corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction indicated beneath the signature line of this Agreement, have the corporate power to own our properties and to carry on our business as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except to the extent that failure to so qualify is not reasonably likely to result in a Material Adverse Effect (as defined in the Credit Agreement). (b) Our execution, delivery and performance of this Agreement and our granting of the security interest in the Collateral (i) have been duly authorized by all requisite corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized. (c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral. (d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you. (i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you. (f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral. (g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. (h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder. (i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition. (j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark. (k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein. (l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto. (m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing. (n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement. (o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request. (p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 2 contracts
Sources: Security Agreement (Methes Energies International LTD), Security Agreement (Methes Energies International LTD)
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representationsre-performed, at Contractor’s expense, and EnviroSpark shall have available to it all other rights and remedies provided at law or in equity with respect thereto;
7.1 Contractor represents, covenants and warranties, which shall be deemed warrants to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any ObligationEnviroSpark that:
(a) We are a corporation, duly organized, validly existing Contractor has the right to enter into this Agreement and to perform fully all of Contractor's obligations in good standing under the laws this Agreement;
(b) Contractor’s entering into this Agreement with EnviroSpark and Contractor's performance of the jurisdiction indicated beneath Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is a party;
(c) Contractor has the signature line required skill, experience, and qualifications to perform the Services, and has obtained and maintained all consents, licenses, permits, certificates and similar approvals required by applicable ordinance, regulation or law for it to perform the Services (collectively “Permits”);
(d) Contractor shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
(e) Contractor shall perform the Services, and shall cause all approved Lower-Tier Subcontractors to perform the Services, in compliance with all applicable federal, state, and local laws and regulations, including (without limitation) occupational and workplace safety laws and regulations (including, without limitation, the Occupational Safety and Health Act of 1970, as amended, and the regulations promulgated thereunder, collectively referred to as “OSHA”) and the Immigration Reform and Control Act of 1986 as amended and regulations promulgated thereunder;
(f) Contractor shall not, and shall cause all approved Lower-Tier Subcontractors not to, create or permit to exist in the performance of Services any unsafe working environment that could lead to violations of applicable laws or regulations or to injury to persons, including (without limitation) by requiring its employees and contractors, and its approved Lower-Tier Subcontractors’ employees and contractors, to wear personal protective equipment as mandated by OSHA;
(g) Contractor agrees to adhere to all applicable human rights labor laws and regulations in the performance of its duties in the Agreement. The Contactor acknowledges that EnviroSpark has established policies related to human rights and forced labor, and Contractor commits to complying with these policies as well as any legal requirements in effect. The Contractor shall ensure that their own subcontractors and agents are aware of and comply with these obligations. In the event of any violation or potential violation of these laws or policies, the Contractor agrees to promptly notify EnviroSpark and cooperate fully in addressing the issue.
(h) Contractor shall not, and shall cause all approved Lower-Tier Subcontractors not to, provide or allow any Services to be performed by any employees, laborers, or subcontractors who have a history of criminal convictions or deferred-adjudication or who pose a potential threat or risk of injury to persons, whether EnviroSpark personnel, customers or others. Criminal history might include, but is not limited to, such crimes as assault, battery, rape, molestation, sexual assault, indecent exposure, indecency with a child, murder or kidnapping;
(i) All Services and equipment installed in connection therewith shall result in operating EnviroSpark systems that perform in accordance with the applicable manufacturers' published specifications, and that comply with the description of Services set forth in the applicable SOW or P.O. Contract, for a period of one (1) year from the date of the completion of the applicable Services. If any element of the Services does not conform to the foregoing warranty during such 1-year period, Contractor will, as promptly as practicable, re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of EnviroSpark such re-performance is impracticable and such non-conformance has harmed EnviroSpark, EnviroSpark shall so notify Contractor, Contractor will promptly refund that portion of the fees allocable to such non-conforming element, EnviroSpark shall be entitled to re-perform, or have such Services
(j) All tangible goods provided by Contractor to EnviroSpark or to a third party on EnviroSpark’s behalf in connection with the Services shall be free from defects in materials and workmanship for a period of one (1) year from contractor’s delivery thereof;
(k) Contractor shall have, before commencing Services at a location specified in the applicable SOW or P.O. Contract, satisfied itself concerning the nature and location of the Services, including all conditions (surface, sub-surface or otherwise) that may affect Contractor’s performance of the Services. Failure to acquaint itself with such applicable conditions will not relieve Contractor of its responsibility for properly performing its obligations hereunder. Prior to commencement of any Services, Contractor shall have: (a) thoroughly examined all drawings and specifications and examined the Services location and surrounding area and ascertained for itself the conditions to be encountered; and (b) relied solely on its own information and investigation and not on statements or representations, if any, that may be made or have been made by EnviroSpark. Any investigations of location of the Services and its surface or subsurface conditions provided by EnviroSpark or the applicable EnviroSpark customer are for information only and are furnished without warranty or guarantee of their content. Contractor assumes full responsibility for any and all risks in connection with the performance of the Services, and the risk of any loss arising out of performance of the Agreement caused by any conditions at such location. Contractor will not be relieved of its obligations to perform the Services in accordance with the SOW or P.O. Contract by tests, inspections or approvals required or performed by persons other than Contractor;
(l) Contractor shall cause all Approved Subcontractors’ warranties to be no less stringent or robust than the warranties provided herein. Contractor and any such Approved Subcontractor warranties shall be assignable to EnviroSpark’s client or such client’s designee;
(m) The performance of the Services, the tangible work product resulting from the Services, and EnviroSpark’s clients’ use of such work product shall not infringe or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party;
(n) Contractor shall not, and shall cause Contractor’s officers, employees and representatives not to, disparage or encourage or induce others to disparage EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products, or EnviroSpark’s current or former clients. For purposes of this Agreement, have the corporate power to own our properties and to carry on our business term “disparage” means (except as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business required by law but otherwise without limitation) comments or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except statements to the extent press or any individual or entity with whom EnviroSpark has or may have a business relationship that failure to so qualify is not are reasonably likely to result adversely affect: (i) Enviro Spark’ s business reputation;
(ii) the conduct of the business of EnviroSpark (including, without limitation, any business plans or prospects); or (iii) the business reputation of EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products; and
(o) If Contractor fails to promptly correct defective work, EnviroSpark may, at Contractor's expense, make the corrections and withhold all amounts expended in a Material Adverse Effect connection with such corrections from any payments owed to Contractor. This remedy shall be in addition to, and not in limitation of, any other remedy available to EnviroSpark at law or in equity.
7.2 EnviroSpark hereby represents and warrants to Contractor that:
(as defined in a) it has the Credit Agreement).full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) Our execution, delivery and performance the execution of this Agreement and our granting of by its representative whose signature is set forth at the security interest in the Collateral (i) have end hereof has been duly authorized by all requisite necessary corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 2 contracts
Sources: Independent Contractor Services Agreement, Independent Contractor Services Agreement
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations7.1 Contractor represents, covenants and warranties, which shall be deemed warrants to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any ObligationEnviroSpark that:
(a) We are a corporation, duly organized, validly existing Contractor has the right to enter into this Agreement and to perform fully all of Contractor's obligations in good standing under the laws this Agreement;
(b) Contractor's entering into this Agreement with EnviroSpark and Contractor's performance of the jurisdiction indicated beneath Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is a party;
(c) Contractor has the signature line required skill, experience, and qualifications to perform the Services, and has obtained and maintained all consents, licenses, permits, certificates and similar approvals required by applicable ordinance, regulation or law for it to perform the Services (collectively “Permits”);
(d) Contractor shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
(e) Contractor shall perform the Services, and shall cause all approved Lower-Tier Subcontractors to perform the Services, in compliance with all applicable federal, state, and local laws and regulations, including (without limitation) occupational and workplace safety laws and regulations and the Immigration Reform and Control Act of 1986 as amended ("IRCA") and regulations promulgated thereunder;
(f) Contractor shall not, and shall cause all approved Lower-Tier Subcontractors not to, create in the performance of Services any unsafe working environment that could lead to violations of applicable laws or regulations or to injury to persons;
(g) Contractor shall not, and shall cause all approved Lower-Tier Subcontractors not to, provide or allow any Services to be performed by any employees, laborers, or subcontractors who have a history of criminal convictions or deferred-adjudication or who pose a potential threat or risk of injury to persons, whether EnviroSpark personnel, customers or others. Criminal history might include, but is not limited to, such crimes as assault, battery, rape, molestation, sexual assault, indecent exposure, indecency with a child, murder or kidnapping;
(h) All Services and equipment installed in connection therewith shall result in operating EnviroSpark systems that perform in accordance with the applicable manufacturers' published specifications, and that comply with the description of Services set forth in the applicable SOW or P.O. Contract, for a period of one (1) year from the date of the completion of the applicable Services. If any element of the Services does not conform to the foregoing warranty during such 1-year period, Contractor will, as promptly as practicable, re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of EnviroSpark such re-performance is impracticable and such non-conformance has harmed EnviroSpark, EnviroSpark shall so notify Contractor, Contractor will promptly refund that portion of the fees allocable to such non-conforming element, EnviroSpark shall be entitled to re-perform, or have such Services re-performed, at Contractor’s expense, and EnviroSpark shall have available to it all other rights and remedies provided at law or in equity with respect thereto;
(i) All tangible goods provided by Contractor to EnviroSpark or to a third party on EnviroSpark’s behalf in connection with the Services shall be free from defects in materials and workmanship for a period of one (1) year from contractor’s delivery thereof;
(j) Contractor shall have, before commencing Services at a location specified in the applicable SOW or P.O. Contract, satisfied itself concerning the nature and location of the Services, including all conditions (surface, sub-surface or otherwise) that may affect Contractor’s performance of the Services. Failure to acquaint itself with such applicable conditions will not relieve Contractor of its responsibility for properly performing its obligations hereunder. Prior to commencement of any Services, Contractor shall have: (a) thoroughly examined all drawings and specifications and examined the Services location and surrounding area and ascertained for itself the conditions to be encountered; and (b) relied solely on its own information and investigation and not on statements or representations, if any, that may be made or have been made by EnviroSpark. Any investigations of location of the Services and its surface or subsurface conditions provided by EnviroSpark or the applicable EnviroSpark customer are for information only and are furnished without warranty or guarantee of their content. Contractor assumes full responsibility for any and all risks in connection with the performance of the Services, and the risk of any loss arising out of the performance of the Agreement caused by any conditions at such location. Contractor will not be relieved of its obligations to perform the Services in accordance with the SOW or P.O. Contract by tests, inspections or approvals required or performed by persons other than Contractor;
(k) Contractor shall cause all Approved Subcontractors’ warranties to be no less stringent or robust than the warranties provided herein. Contractor and any such Approved Subcontractor warranties shall be assignable to EnviroSpark’s client or such client’s designee;
(l) The performance of the Services, the tangible work product resulting from the Services, and EnviroSpark’s clients’ use of such work product shall not infringe or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party;
(m) Contractor shall not, and shall cause Contractor’s officers, employees and representatives not to, disparage or encourage or induce others to disparage EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products, or EnviroSpark’s current or former clients. For purposes of this Agreement, have the corporate power to own our properties and to carry on our business term “disparage” means (except as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business required by law but otherwise without limitation) comments or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except statements to the extent press or any individual or entity with whom EnviroSpark has or may have a business relationship that failure to so qualify is not are reasonably likely to result adversely affect: (i) Enviro Spark’ s business reputation; (ii) the conduct of the business of EnviroSpark (including, without limitation, any business plans or prospects); or (iii) the business reputation of EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products; and
(n) If Contractor fails to promptly correct defective work, EnviroSpark may, at Contractor's expense, make the corrections and withhold all amounts expended in a Material Adverse Effect connection with such corrections from any payments owed to Contractor. This remedy shall be in addition to, and not in limitation of, any other remedy available to EnviroSpark at law or in equity.
7.2 EnviroSpark hereby represents and warrants to Contractor that:
(as defined in a) it has the Credit Agreement).full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) Our execution, delivery and performance the execution of this Agreement and our granting of by its representative whose signature is set forth at the security interest in the Collateral (i) have end hereof has been duly authorized by all requisite necessary corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 2 contracts
Sources: Independent Contractor Services Agreement, Independent Contractor Services Agreement
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations, covenants and warranties, which shall be deemed to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any Obligation:
(a) We are a corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction indicated beneath the signature line State of this AgreementDelaware, have the corporate power to own our properties and to carry on our business as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except to the extent that failure to so qualify is not reasonably likely to result in a Material Adverse Effect (as defined in the Credit Agreement).
(b) Our execution, delivery and performance of this Agreement and our granting of the security interest in the Collateral (i) have been duly authorized by all requisite corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing filings of a UCC Uniform Commercial Code financing statement statements in the requisite public office in the jurisdiction in which we are organizedoffices listed on Exhibit “B” hereto.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an the appropriate UCC Uniform Commercial Code financing statement statements in the requisite public office in the jurisdiction in which we are organizedoffices listed on Exhibit “B” hereto, a perfected (to the extent perfection is obtained by the filing of such financing statementstatements) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future, except as set out in the Loan Agreement or any other document delivered in connection thereto. Upon such filingfilings or recordings, no filing or recording of any other financing statements or other instrument instruments and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, validvalid and enforceable, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC Uniform Commercial Code financing statementstatements. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement and those related to Permitted Encumbrances (as defined in the Loan Agreement) and/or as approved by the Lender in writing from time to time, and we will be the lawful owner of the Collateral (other than inventory consigned to us) and will have good right to grant you a security interest therein. All Except to the extent that the aggregate value of the Collateral or your ability to enforce your rights under this Agreement would not be materially affected thereby: all documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you or by any of the following liens:
(A) liens for current taxes, assessments or other governmental charges or levies (including local real estate taxes and assessments) that are not delinquent or that are being contested in good faith by appropriate action if we have set aside on our books adequate reserves with respect thereto and such contest does not and is not likely to subject any Collateral to the risk of loss or forfeiture or impair your security interest therein or, if such contest does subject any Collateral to any such risk or impairment, we have either (a) deposited with you as security for the payment thereof cash in an amount equal to such contested taxes, assessments, governmental charges or levies and all related interest and late charges or (b) furnished to you alternative collateral satisfactory in form and amount to you;
(B) carrier’s, warehousemen’s, materialmen’s, mechanics’, workmen’s, employees’, repairmen’s and like liens arising in the ordinary course of business that are not delinquent or that have not remained undischarged or unbonded for more than 30 days or the enforcement of which has been suspended or that are being contested in good faith by appropriate proceedings if we have set aside on our books adequate reserves with respect thereto and such contest does not and is not likely to subject any Collateral to the risk of loss or forfeiture or impair your security interest therein;
(C) deposits or pledges to secure statutory obligations, surety or appeal bonds, bonds for release of attachment, stay of execution or injunctions, performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases in the ordinary course of business or product liability insurance; and
(D) liens in respect of judgments or awards with respect to which an appeal or appropriate proceeding for review is being prosecuted in good faith and a stay of execution pending such appeal or review is in effect.
(i) Each Except to the extent that the aggregate value of the Collateral or your ability to enforce your rights under this Agreement would not be materially adversely affected thereby, each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section paragraph (e) or as would not reasonably be likely to result in a Material Adverse Effect); (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest interest; and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section paragraph (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, except to the extent that the aggregate value of the Collateral or your ability to enforce your rights under this Agreement would not be materially adversely affected thereby, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that at any time is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, and will continue to be solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under licenses related to the trademarks and other licenses referred to in subsection 4(m) and under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect. Without your prior consent, except to the extent that failure the aggregate value of the Collateral or your ability to do so is enforce your rights under this Agreement would not reasonably likely to result in a Material Adverse Effect. Without your prior consentbe materially adversely affected thereby, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark or other license referred to in Section 5.(msubsection 4(m) and of any use by any person or entity of any other process or product that infringes upon any such trademarktrademark or other license.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A “A” hereto, and we have not at any time during the past five years kept any of our Inventory at any other location except as indicated on Exhibit “A” hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept are now, and at all times during the past five years have been, at the address address(es) indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name, and we have not within the past five years had any other legal name, nor have we done within such five years nor are we now doing business under any other name, except as set forth on Exhibit “A” to this Agreement. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization corporate identification number, if any, are set forth below our signature hereto.
(m) Exhibit B “C” hereto accurately and completely lists all registered trademarks and patents owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks and patents are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse EffectAgreement. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademarktrademark or patent, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ ▇, patent or license not existing on the date hereof, the provisions of Section 1. section 1 hereof shall automatically apply thereto and we will give you prompt notice thereof in writing. We authorize you to modify this Agreement by amending Exhibit “C” hereto to include any future trademarks, license agreements, trademark applications and registrations, trade names and patents that are included in the Collateral.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.A
Appears in 1 contract
REPRESENTATIONS, COVENANTS AND WARRANTIES. We Except as may be otherwise expressly stated in the Disclosure Schedule attached hereto as Exhibit B and made a part hereof, Borrower hereby make the following representationsrepresents, covenants and warrantieswarrants to Lender and its successors and assigns, which shall be deemed to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any Obligationas follows:
(a) We are The location and construction, occupancy, operation and use of all improvements now and hereafter attached to or placed, erected, constructed or developed as a corporation, duly organized, validly existing and in good standing under the laws portion of the jurisdiction indicated beneath Property (the signature line of this Agreement"Improvements") do not and will not violate any applicable laws, have the corporate power to own our properties and to carry on our business as now being conductedstatute, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our propertiesordinance, the transaction of our business rule, regulation, policy, order or the collection determination of any federal, state, local or other governmental authority ("Governmental Authority") or any board of our Accounts make such qualification necessary fire underwriters (or other body exercising similar functions), or any restrictive covenant or deed restriction affecting any portion of the Property, including without limitation, any applicable zoning ordinances and have building codes, flood disaster laws and health and environmental laws, rules and regulations (hereinafter collectively called the corporate power to execute, deliver and perform this Agreement, except to the extent that failure to so qualify is not reasonably likely to result in a Material Adverse Effect (as defined in the Credit Agreement"Applicable Laws").
(b) Our executionWithout in any way limiting the generality of (a) above, delivery and performance of this Agreement and our granting of neither the security interest in Property nor Borrower are the Collateral (i) have been duly authorized by all requisite corporate action; (ii) will not: (A) violate any provision of law, any order subject of any courtpending or, tribunal to the best of Borrower's knowledge, threatened investigation or agency of government inquiry by any Governmental Authority, or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default are subject to any remedial obligations under any indentureApplicable Laws pertaining to health or the environment ("Applicable Environmental Laws"), license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited towithout limitation, Regulations U the Comprehensive Environmental Response, Compensation, and X Liability Act of 1980, as amended ("CERCLA"), the Board Resource Conservation and Recovery Act of Governors 1987, as amended ("RCRA"), and the Toxic Substances Control Act, The Clean Air Act, and The Clean Water Act, and applicable state laws, and this representation and warranty would continue to be true and correct following disclosure to any applicable Governmental Authority of all relevant facts, conditions and circumstances pertaining to the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organizedProperty and/or Borrower.
(c) This Agreement has been duly executed and delivered by us and Borrower is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right not required to obtain equitable remedies. This Agreement creates in your favor a valid andany permits, upon licenses or authorizations to construct, occupy, operate or use any portion of the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained Property by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording reason of any other financing statements Applicable Environmental Laws, or other instrument and no recordingif any such permits, filing licenses or indexing authorizations are required by any Applicable Environmental Laws, such permits, licenses or authorizations have, as of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legaldate hereof, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateralbeen obtained.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action Borrower has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtordetermine and has determined that, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consentbest of its knowledge, we will not compromiseno hazardous substances, adjustsolid wastes, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts substances known or suspected to pose a threat to health or the environment ("Hazards") have been disposed of or extend the time for payment thereof) otherwise released on or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if Property or exist on or within any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the CollateralProperty. No prior use, all material delays in performanceeither by Borrower or, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will best of Borr▇▇▇▇'▇ each ▇nowledge, after due inquiry, the prior owners of our ledger cardsthe Property, books has occurred which violates any Applicable Environmental Laws. The use which Borrower makes and intends to make of account and other records relating the Property will not result in the disposal or release of any hazardous substance, solid waste or Hazards on, in or to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A heretoProperty in violation of any Applicable Environmental Laws. The location of our principal office terms "hazardous substance" and chief executive office "release" shall each have the meanings specified in CERCLA, including, without limitation, petroleum products and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices petroleum wastes of any kind, and amendments the terms "solid waste" and renewals thereto"disposal" (or "disposed") shall each have the meanings specified in RCRA; provided, however, that in the event either that CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment; and will take any and all steps and will observe such formalities as you may reasonably requestprovided further that, all in order to create and maintain your valid, first priority security interest in any and all the extent that the laws of the Collateral. We will pay all reasonable out-of-pocket costs State of Colorado establish a meaning for searches and filings in connection therewith. We agree to execute such financing statements"hazardous substance", security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and"release", if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver"solid waste", or cause to be delivered"disposal" which is broader than that specified in either CERCLA or RCRA, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably requestbroader definition shall apply.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 1 contract
Sources: Note (Mego Financial Corp)
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations7.1 Contractor represents, covenants and warranties, which shall be deemed warrants to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any ObligationEnviroSpark that:
(a) We are a corporation, duly organized, validly existing Contractor has the right to enter into this Agreement and to perform fully all of Contractor's obligations in good standing under the laws of the jurisdiction indicated beneath the signature line of this Agreement, have the corporate power to own our properties and to carry on our business as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except to the extent that failure to so qualify is not reasonably likely to result in a Material Adverse Effect (as defined in the Credit Agreement).;
(b) Our executionContractor's entering into this Agreement with EnviroSpark and Contractor's performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is a party;
(c) Contractor has the required skill, experience, and qualifications to perform the Services, and has obtained and maintained all consents, licenses, permits, certificates and similar approvals required by applicable ordinance, regulation or law for it to perform the Services (collectively “Permits”);
(d) Contractor shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
(e) Contractor shall perform the Services in compliance with all applicable federal, state, and local laws and regulations; and
(f) all Services and equipment installed in connection therewith shall result in operating EnviroSpark systems that perform in accordance with the applicable manufacturers' published specifications, and that comply with the description of Services set forth in the applicable SOW, for a period of one (1) year from the date of the completion of the applicable Services. If any element of the Services does not conform to the foregoing warranty during such 1-year period, Contractor will, as promptly as practicable, re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of EnviroSpark such re-performance is impracticable and such non-conformance has harmed EnviroSpark, EnviroSpark shall so notify Contractor, Contractor will promptly refund that portion of the fees allocable to such non- conforming element, EnviroSpark shall be entitled to re- perform, or have such Services re-performed, at Contractor’s expense, and EnviroSpark shall have available to it all other rights and remedies provided at law or in equity with respect thereto.
(g) All tangible goods provided by Contractor to EnviroSpark or to a third party on EnviroSpark’s behalf in connection with the Services shall be free from defects in materials and workmanship for a period of one (1) year from contractor’s delivery thereof.
(h) Contractor shall have, before commencing Services at a location specified in the applicable SOW, satisfied itself concerning the nature and location of the Services, including all conditions (surface, sub-surface or otherwise) that may affect Contractor’s performance of the Services. Failure to acquaint itself with such applicable conditions will not relieve Contractor of its responsibility for properly performing its obligations hereunder. Prior to commencement of any Services, Contractor shall have: (a) thoroughly examined all drawings and specifications and examined the Services location and surrounding area and ascertained for itself the conditions to be encountered; and (b) relied solely on its own information and investigation and not on statements or representations, if any, that may be made or have been made by EnviroSpark. Any investigations of location of the Services and its surface or subsurface conditions provided by EnviroSpark or the applicable EnviroSpark customer are for information only and are furnished without warranty or guarantee of their content. Contractor assumes full responsibility for any and all risks in connection with the performance of the Services, and the risk of any loss arising out of the performance of the Agreement caused by any conditions at such location. Contractor will not be relieved of its obligations to perform the Services in accordance with the SOW by tests, inspections or approvals required or performed by persons other than Contractor.
7.2 EnviroSpark hereby represents and warrants to Contractor that:
(a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) the execution of this Agreement and our granting of by its representative whose signature is set forth at the security interest in the Collateral (i) have end hereof has been duly authorized by all requisite necessary corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 1 contract
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations7.1 Contractor represents, covenants and warranties, which shall be deemed warrants to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any ObligationEnviroSpark that:
(a) We are a corporation, duly organized, validly existing Contractor has the right to enter into this Agreement and to perform fully all of Contractor's obligations in good standing under the laws this Agreement;
(b) Contractor's entering into this Agreement with EnviroSpark and Contractor's performance of the jurisdiction indicated beneath Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is a party;
(c) Contractor has the signature line required skill, experience, and qualifications to perform the Services, and has obtained and maintained all consents, licenses, permits, certificates and similar approvals required by applicable ordinance, regulation or law for it to perform the Services (collectively “Permits”);
(d) Contractor shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
(e) Contractor shall perform the Services, and shall cause all approved Lower-Tier Subcontractors to perform the Services, in compliance with all applicable federal, state, and local laws and regulations, including (without limitation) occupational and workplace safety laws and regulations;
(f) Contractor shall not, and shall cause all approved Lower-Tier Subcontractors not to, create in the performance of Services any unsafe working environment that could lead to violations of applicable laws or regulations or to injury to persons;
(g) All Services and equipment installed in connection therewith shall result in operating EnviroSpark systems that perform in accordance with the applicable manufacturers' published specifications, and that comply with the description of Services set forth in the applicable SOW or P.O. Contract, for a period of one (1) year from the date of the completion of the applicable Services. If any element of the Services does not conform to the foregoing warranty during such 1-year period, Contractor will, as promptly as practicable, re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of EnviroSpark such re-performance is impracticable and such non-conformance has harmed EnviroSpark, EnviroSpark shall so notify Contractor, Contractor will promptly refund that portion of the fees allocable to such non-conforming element, EnviroSpark shall be entitled to re-perform, or have such Services re-performed, at Contractor’s expense, and EnviroSpark shall have available to it all other rights and remedies provided at law or in equity with respect thereto;
(h) All tangible goods provided by Contractor to EnviroSpark or to a third party on EnviroSpark’s behalf in connection with the Services shall be free from defects in materials and workmanship for a period of one (1) year from contractor’s delivery thereof;
(i) Contractor shall have, before commencing Services at a location specified in the applicable SOW or P.O. Contract, satisfied itself concerning the nature and location of the Services, including all conditions (surface, sub-surface or otherwise) that may affect Contractor’s performance of the Services. Failure to acquaint itself with such applicable conditions will not relieve Contractor of its responsibility for properly performing its obligations hereunder. Prior to commencement of any Services, Contractor shall have: (a) thoroughly examined all drawings and specifications and examined the Services location and surrounding area and ascertained for itself the conditions to be encountered; and (b) relied solely on its own information and investigation and not on statements or representations, if any, that may be made or have been made by EnviroSpark. Any investigations of location of the Services and its surface or subsurface conditions provided by EnviroSpark or the applicable EnviroSpark customer are for information only and are furnished without warranty or guarantee of their content. Contractor assumes full responsibility for any and all risks in connection with the performance of the Services, and the risk of any loss arising out of the performance of the Agreement caused by any conditions at such location. Contractor will not be relieved of its obligations to perform the Services in accordance with the SOW or P.O. Contract by tests, inspections or approvals required or performed by persons other than Contractor;
(j) Contractor shall cause all Approved Subcontractors’ warranties to be no less stringent or robust than the warranties provided herein. Contractor and any such Approved Subcontractor warranties shall be assignable to EnviroSpark’s client or such client’s designee;
(k) The performance of the Services, the tangible work product resulting from the Services, and EnviroSpark’s clients’ use of such work product shall not infringe or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party;
(l) Contractor shall not, and shall cause Contractor’s officers, employees and representatives not to, disparage or encourage or induce others to disparage EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products, or EnviroSpark’s current or former clients. For purposes of this Agreement, have the corporate power to own our properties and to carry on our business term “disparage” means (except as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business required by law but otherwise without limitation) comments or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except statements to the extent press or any individual or entity with whom EnviroSpark has or may have a business relationship that failure to so qualify is not are reasonably likely to result adversely affect: (i) Enviro Spark’ s business reputation; (ii) the conduct of the business of EnviroSpark (including, without limitation, any business plans or prospects); or (iii) the business reputation of EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products; and
(m) If Contractor fails to promptly correct defective work, EnviroSpark may, at Contractor's expense, make the corrections and withhold all amounts expended in a Material Adverse Effect connection with such corrections from any payments owed to Contractor. This remedy shall be in addition to, and not in limitation of, any other remedy available to EnviroSpark at law or in equity.
7.2 EnviroSpark hereby represents and warrants to Contractor that:
(as defined in a) it has the Credit Agreement).full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) Our execution, delivery and performance the execution of this Agreement and our granting of by its representative whose signature is set forth at the security interest in the Collateral (i) have end hereof has been duly authorized by all requisite necessary corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 1 contract
REPRESENTATIONS, COVENANTS AND WARRANTIES. We Except as may be otherwise expressly stated in the Disclosure Schedule attached as Exhibit "B" to the Environmental Certificate (the "Disclosure Schedule"), Trustor hereby make the following representationsrepresents, covenants and warrants to Beneficiary and its successors and assigns, as follows, and as to such representations and warranties, which shall be deemed the same are made based upon contents of the Phase I report described in the Disclosure Schedule and to be repeated and confirmed upon the creation or acquisition by us best of each item of Collateral and upon the creation of any ObligationTrustor's knowledge:
(ai) We are a corporationThe location and construction, duly organizedoccupancy, validly existing operation and in good standing under the laws use of all Improvements do not and will not violate any applicable laws, statute, ordinance, rule, regulation, policy, order or determination of any Governmental Authority or any board of fire underwriters (or other body exercising similar functions), or any restrictive covenant or deed restriction affecting any portion of the jurisdiction indicated beneath Mortgaged Property, including without limitation, any applicable zoning ordinances and building codes, flood disaster laws and health and environmental laws, rules and regulations (hereinafter collectively called the signature line of this Agreement, have the corporate power to own our properties and to carry on our business as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except to the extent that failure to so qualify is not reasonably likely to result in a Material Adverse Effect (as defined in the Credit Agreement"Applicable Laws").
(b) Our execution, delivery and performance of this Agreement and our granting of the security interest in the Collateral (i) have been duly authorized by all requisite corporate action; (ii) will not: Without in any way limiting the generality of (Aa) violate any provision of lawabove, any order neither the Mortgaged Property nor the Trustor are the subject of any courtpending or, tribunal to the best of Trustor's knowledge, threatened investigation or agency of government inquiry by any Governmental Authority, or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default are subject to any remedial obligations under any indentureApplicable Laws pertaining to health or the environment ("Applicable Environmental Laws"), license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited towithout limitation, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lienComprehensive Environmental Response, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this AgreementCompensation, and we will be Liability Act of 1980, as amended ("CERCLA"), the lawful owner Resource Conservation and Recovery Act of 1987, as amended ("RCRA"), and the Collateral Toxic Substances Control Act, The Clean Air Act, and will have good right The Clean Water Act, and applicable state laws, and this representation and warranty would continue to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct following disclosure to any applicable Governmental Authority of all relevant facts, conditions and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise circumstances pertaining to the Collateral nor any operation or use of any of Mortgaged Property and/or the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to youTrustor.
(iiii) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so Trustor is not reasonably likely required to result in a Material Adverse Effect. Without your prior consentobtain any permits, we will not compromiselicenses or authorizations to construct, adjustoccupy, amend, modify operate or alter use any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the CollateralMortgaged Property by reason of any Applicable Environmental Laws, all material delays in performanceor if any such permits, notices of default, claims made licenses or disputes asserted authorizations are required by any account debtor Applicable Envirorimental Laws, such permits, licenses or other obligor and any other matters materiallyauthorizations have, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We , been obtained or will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than be obtained in the ordinary course of business or where such action would not reasonably be expected to result manner required by any Applicable Environmental Laws in a Material Adverse Effect. Iftimely manner.
(iv) Trustor has determined, before to the Obligations best of its knowledge, that no hazardous substances, solid wastes, or other substances known or suspected to pose a threat to health or the environment (other than contingent and similar obligations"Hazards") have been satisfied in full, we obtain rights to any new trademark, disposed of or become entitled otherwise released on or to the benefit Mortgaged Property or exist on or within any portion of the Mortgaged Property except as described on the Disclosure Schedule. No prior use, either by Trustor or the prior owners of the Mortgaged Property, has occurred which violates any Applicable Environmental Laws. The use which Trustor makes and intends to make of the Mortgaged Property will not result in the disposal or release of any trademarkhazardous substance, trade namesolid waste or Hazards on, service ▇▇▇▇ in or license not existing to the Mortgaged Property except as described on the date hereofDisclosure Schedule. The terms "hazardous substance" and "release" shall each have the meanings specified in CERCLA, the provisions of Section 1. hereof shall automatically apply thereto including, without limitation, petroleum products and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices petroleum wastes of any kind, and amendments the terms "solid waste" and renewals thereto"disposal" (or"disposed") shall each have the meanings specified in RCRA; provided, and will take however, that in the event either that CERCLA or RCRA is amended so as to broaden the meaning of any and all steps and will observe term defined thereby, such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating broader meaning shall apply subsequent to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.effective date of
Appears in 1 contract
Sources: Deed of Trust (Emeritus Corp\wa\)
REPRESENTATIONS, COVENANTS AND WARRANTIES. We hereby make the following representations7.1 Contractor represents, covenants and warranties, which shall be deemed warrants to be repeated and confirmed upon the creation or acquisition by us of each item of Collateral and upon the creation of any ObligationEnviroSpark that:
(a) We are a corporation, duly organized, validly existing Contractor has the right to enter into this Agreement and to perform fully all of Contractor's obligations in good standing under the laws this Agreement;
(b) Contractor's entering into this Agreement with EnviroSpark and Contractor's performance of the jurisdiction indicated beneath Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is a party;
(c) Contractor has the signature line required skill, experience, and qualifications to perform the Services, and has obtained and maintained all consents, licenses, permits, certificates and similar approvals required by applicable ordinance, regulation or law for it to perform the Services (collectively “Permits”);
(d) Contractor shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
(e) Contractor shall perform the Services in compliance with all applicable federal, state, and local laws and regulations; and
(f) All Services and equipment installed in connection therewith shall result in operating EnviroSpark systems that perform in accordance with the applicable manufacturers' published specifications, and that comply with the description of Services set forth in the applicable SOW or P.O. Contract, for a period of one (1) year from the date of the completion of the applicable Services. If any element of the Services does not conform to the foregoing warranty during such 1-year period, Contractor will, as promptly as practicable, re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of EnviroSpark such re-performance is impracticable and such non-conformance has harmed EnviroSpark, EnviroSpark shall so notify Contractor, Contractor will promptly refund that portion of the fees allocable to such non-conforming element, EnviroSpark shall be entitled to re-perform, or have such Services re-performed, at Contractor’s expense, and EnviroSpark shall have available to it all other rights and remedies provided at law or in equity with respect thereto.
(g) All tangible goods provided by Contractor to EnviroSpark or to a third party on EnviroSpark’s behalf in connection with the Services shall be free from defects in materials and workmanship for a period of one (1) year from contractor’s delivery thereof.
(h) Contractor shall have, before commencing Services at a location specified in the applicable SOW or P.O. Contract, satisfied itself concerning the nature and location of the Services, including all conditions (surface, sub-surface or otherwise) that may affect Contractor’s performance of the Services. Failure to acquaint itself with such applicable conditions will not relieve Contractor of its responsibility for properly performing its obligations hereunder. Prior to commencement of any Services, Contractor shall have: (a) thoroughly examined all drawings and specifications and examined the Services location and surrounding area and ascertained for itself the conditions to be encountered; and (b) relied solely on its own information and investigation and not on statements or representations, if any, that may be made or have been made by EnviroSpark. Any investigations of location of the Services and its surface or subsurface conditions provided by EnviroSpark or the applicable EnviroSpark customer are for information only and are furnished without warranty or guarantee of their content. Contractor assumes full responsibility for any and all risks in connection with the performance of the Services, and the risk of any loss arising out of the performance of the Agreement caused by any conditions at such location. Contractor will not be relieved of its obligations to perform the Services in accordance with the SOW or P.O. Contract by tests, inspections or approvals required or performed by persons other than Contractor.
(i) Contractor shall cause all Approved Subcontractors’ warranties to be no less stringent or robust than the warranties provided herein. Contractor and any such Approved Subcontractor warranties shall be assignable to EnviroSpark’s client or such client’s designee.
(j) The performance of the Services, the tangible work product resulting from the Services, and EnviroSpark’s clients’ use of such work product shall not infringe or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party.
(k) Contractor shall not, and shall cause Contractor’s officers, employees and representatives not to, disparage or encourage or induce others to disparage EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products, or EnviroSpark’s current or former clients. For purposes of this Agreement, have the corporate power to own our properties and to carry on our business term “disparage” means (except as now being conducted, are qualified to engage in business and are in good standing in each jurisdiction in which the character of our properties, the transaction of our business required by law but otherwise without limitation) comments or the collection of any of our Accounts make such qualification necessary and have the corporate power to execute, deliver and perform this Agreement, except statements to the extent press or any individual or entity with whom EnviroSpark has or may have a business relationship that failure to so qualify is not are reasonably likely to result adversely affect: (i) Enviro Spark’ s business reputation; (ii) the conduct of the business of EnviroSpark (including, without limitation, any business plans or prospects); or (iii) the business reputation of EnviroSpark or any of its past and present officers, directors, members, managers, agents, employees and products
(l) If Contractor fails to promptly correct defective work, EnviroSpark may, at Contractor's expense, make the corrections and withhold all amounts expended in a Material Adverse Effect connection with such corrections from any payments owed to Contractor. This remedy shall be in addition to, and not in limitation of, any other remedy available to EnviroSpark at law or in equity.
7.2 EnviroSpark hereby represents and warrants to Contractor that:
(as defined in a) it has the Credit Agreement).full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) Our execution, delivery and performance the execution of this Agreement and our granting of by its representative whose signature is set forth at the security interest in the Collateral (i) have end hereof has been duly authorized by all requisite necessary corporate action; (ii) will not: (A) violate any provision of law, any order of any court, tribunal or agency of government or our certificate of incorporation, bylaws or other charter documents; (B) violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any indenture, license, sublicense, agreement or other instrument to which we are a party or by which we or any of our properties are bound; (C) violate any governmental or agency rule or regulation (including, but not limited to, Regulations U and X of the Board of Governors of the Federal Reserve System); or (D) result in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the Collateral, except for the security interest created by this Agreement; and (iii) do not require any filing or registration with, any permit, license, consent or approval of, or any exemption by, any governmental or regulatory authority, except the filing of a UCC financing statement in the requisite public office in the jurisdiction in which we are organized.
(c) This Agreement has been duly executed and delivered by us and is our legal, valid and binding obligation, enforceable against us in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the enforceability of rights of creditors generally and to general equitable principles that may limit the right to obtain equitable remedies. This Agreement creates in your favor a valid and, upon the filing of an appropriate UCC financing statement in the requisite public office in the jurisdiction in which we are organized, a perfected (to the extent perfection is obtained by the filing of such financing statement) lien on and security interest in the Collateral, enforceable against us and all third parties and superior in right to all other security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other financing statements or other instrument and no recording, filing or indexing of this Agreement is necessary in order to preserve and protect your security interest in the Collateral as a legal, valid, enforceable and perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to such UCC financing statement. No person or entity from which we lease any of our premises has filed any UCC financing statement with respect to any contractual lien that would have priority over your security interest in the Collateral.
(d) On the date hereof and at any time during the term of this Agreement during which a security interest in your favor in the Collateral exists, no financing statement (or similar statement or instrument of registration under the laws of any jurisdiction) is or will be on file or registered in any public office covering any interest of any kind with respect to the Collateral, or intended so to be, other than those relating to the security interest created by this Agreement, and we will be the lawful owner of the Collateral and will have good right to grant you a security interest therein. All documents and agreements held by us with respect to the Collateral will be true and correct and in all respects what they purport to be; all signatures and endorsements that appear thereon will be genuine and such signatories and endorsers will have the full capacity to contract; none of the transactions underlying or giving rise to the Collateral nor any operation or use of any of the Collateral will violate any applicable state or federal law or regulation; and all documents relating to the Collateral will be legally sufficient under such laws and regulations and will be legally enforceable in accordance with their terms. None of the Collateral is or will be affixed to real estate unless we have furnished to you such consents, waivers or disclaimers as are necessary to make your security interest in such of the Collateral valid against persons or entities holding an interest in such real estate. We will defend the Collateral against all claims and demands of all other parties claiming the same or an interest therein, and none of the Collateral will be: (i) sold, assigned or transferred to any person or entity other than you except, with respect to Inventory, in the ordinary course of our business or (ii) in any way pledged, mortgaged or otherwise encumbered except to you.
(i) Each of our accounts receivable: (A) subject to any reserve reflected on the Company’s balance sheet, is on the date hereof and will be at all times during the term of this Agreement a good and valid account receivable representing an undisputed bona fide right to payment from the account debtor with respect thereto for merchandise held subject to delivery or theretofore shipped or delivered pursuant to a contract of sale, for services theretofore performed by us, for property sold, leased, licensed, assigned or otherwise disposed of or arising out of the use of a credit or charge card or information contained on or for use with the card; (B) will not be subject to any defense, offset, counterclaim, holdback, discount or allowance, except as stated in a statement delivered to you pursuant to this sub-section (e) or as would not reasonably be likely to result in a Material Adverse Effect; (C) will not have been made with an account debtor under an agreement pursuant to which any material reduction or discount may be claimed except as indicated in a statement or invoice furnished to you with reference thereto; and (D) will be an account receivable of which we are the lawful owner and have the right to subject the same to your security interest and (ii) no action has been or will be taken by us which has or will have the effect of giving to an account debtor any defense, setoff, claim or counterclaim against us that may be asserted against you, whether in any proceeding to enforce the Collateral or otherwise. Any variance from the representations set forth in this sub-section (e) with respect to any account receivable will be noted on any report or statement of accounts receivable delivered to you or will be otherwise be reported in writing to you promptly upon our becoming aware of such variance. No account receivable will have been or hereafter will be sold, assigned or transferred to any person or entity other than you or in any way encumbered except to you.
(f) To the best of our knowledge, each account debtor or guarantor or endorser of an account receivable or other party obligated under an Account that is or becomes subject to a security interest in your favor is or was, at the time as such party became so obligated, solvent and fully able to pay and perform in full when due all Accounts under which such person or entity is obligated, and we will take all steps reasonably necessary to preserve the liability of each account debtor, guarantor, endorser, obligor or secondary party whose obligations are part of the Collateral.
(g) We will perform all of the terms, covenants and conditions on our part to be observed or performed under the contracts giving rise to our accounts receivable and other Accounts and take all steps necessary to keep such licenses and contracts in full force and effect, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect. Without your prior consent, we will not compromise, adjust, amend, modify or alter any of the terms, covenants or conditions of any of our accounts receivable or other Accounts (or extend the time for payment thereof) or grant any additional discounts, allowances or credits thereon, except to the extent that failure to do so is not reasonably likely to result in a Material Adverse Effect.
(h) We will promptly notify you if any account receivable becomes evidenced by an instrument, and, upon your request, promptly deliver said instrument to you, appropriately endorsed in your favor to be held as Collateral hereunder.
(i) We will furnish to you at such times as you may reasonably request statements, in form and substance satisfactory to you, of all of our accounts receivable, itemized by account debtor, and of the location and aggregate value at each such location of all our Inventory and a statement showing opening Inventory, Inventory acquired, Inventory sold and held for future delivery, Inventory returned or repossessed, Inventory used or consumed in our business and closing Inventory, each such statement to be certified by our chief financial officer, and, promptly from time to time, such other information as you may reasonably request regarding the Collateral and our operations, business, affairs and financial condition.
(j) We will, promptly upon learning thereof, report to you: (i) any material, adverse change in the information contained herein relating to us, our business or the Collateral; (ii) the details of any material, adverse claim or litigation affecting us or the Collateral; (iii) any material loss of or damage to the Collateral; and (iv) any reclamation, return or repossession of any material portion of the Collateral, all material delays in performance, notices of default, claims made or disputes asserted by any account debtor or other obligor and any other matters materially, adversely affecting the value, enforceability or collectibility of any of the Collateral; and (v) any use by any person or entity of any term or design likely to cause confusion with any trademark referred to in Section 5.(m) and of any use by any person or entity of any other process or product that infringes upon any such trademark.
(k) We will conduct and carry on our business in a proper and efficient manner so as to protect and preserve the Collateral and maintain, in accordance with generally accepted accounting principles, consistently applied, accurate books and records pertaining to the Collateral and, if so requested by you, we will ▇▇▇▇ each of our ledger cards, books of account and other records relating to the Collateral with appropriate notations, satisfactory to you, disclosing that such Collateral has been assigned and/or transferred to you and that we have granted to you a security interest therein.
(l) All Inventory now owned by us is kept at the locations indicated on Exhibit A hereto. The location of our principal office and chief executive office and the location where the originals of our records pertaining to our Accounts are kept at the address indicated beneath our signature hereto. Our name set forth as our signature hereto is our correct legal name. We will not change our legal name, use any other name nor change the form or jurisdiction of our organization without giving you 20 days’ prior written notice thereof. Our correct United States tax identification number and organization identification number, if any, are set forth below our signature hereto.
(m) Exhibit B hereto accurately and completely lists all registered trademarks owned or used by or licensed or assigned to us. We will maintain the quality of any and all products in connection with which our trademarks are used, consistent with the quality of said products as of the date hereof. We will not enter into any agreement (for example, a license agreement) that is inconsistent with our obligations under this Agreement other than in the ordinary course of business or where such action would not reasonably be expected to result in a Material Adverse Effect. If, before the Obligations (other than contingent and similar obligations) have been satisfied in full, we obtain rights to any new trademark, or become entitled to the benefit of any trademark, trade name, service ▇▇▇▇ or license not existing on the date hereof, the provisions of Section 1. hereof shall automatically apply thereto and we will give you notice thereof in writing.
(n) We will do or cause to be done all recordings, filings and giving of public notice under any applicable law or ordinance necessary to comply fully with such law or ordinance, including any notices to the United States government under the Federal Assignment of Claims Act, and we will from time to time do whatever you may reasonably request by way of obtaining, executing, delivering and/or filing financing statements, landlord’s or mortgagee’s lien waivers and other notices of any kind, and amendments and renewals thereto, and will take any and all steps and will observe such formalities as you may reasonably request, all in order to create and maintain your valid, first priority security interest in any and all of the Collateral. We will pay all reasonable out-of-pocket costs for searches and filings in connection therewith. We agree to execute such financing statements, security agreements or other instruments with respect to any of the Collateral as you may request and authorize you to execute and file at any time such financing statements without our signature and, if upon request we fail to do so, to execute such security agreements or other instruments on our behalf. You may describe the Collateral on any financing statement as “all assets”, “all personal property” or similar generic descriptions. You may file a photocopy or other reproduction of this Agreement as a financing statement.
(o) We will deliver, or cause to be delivered, to you from time to time promptly upon your request: (i) any documents of title, instruments and chattel paper (and you have been granted a direct security interest in all our chattel paper and your claim thereon is not merely as proceeds of Inventory) constituting, representing or relating to the Collateral; (ii) all books of account, records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral for the purpose of inspecting, auditing or copying the same; (iii) all financial statements prepared by or for us regarding our business; (iv) copies of all policies and certificates of insurance relating to the Collateral; and (v) such information concerning the Collateral and our business and affairs as you may reasonably request.
(p) We will take adequate care of the Collateral and pay all costs necessary to preserve the Collateral, including (but not limited to) all taxes, rates, levies, assessments and other charges of every nature that may be lawfully levied, assessed or imposed against or in respect of us or the Collateral as and when they become due and payable.
Appears in 1 contract