1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Agent may, and at the written direction of Required Purchasers shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers). (b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all of the following: (i) foreclose upon and/or sell or otherwise liquidate, the Collateral; (ii) apply to the Obligations any (a) balances and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer; (iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor commencing any Insolvency Proceeding; and/or (iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents. (c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following: (i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account; (ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies; (iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties; (iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral; (v) demand and receive possession of any Obligor’s Books; (vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and (vii) subject to Sections 9.1(a) and (b), exercise all rights and remedies available to Purchaser Agent and each Purchaser under the Note Documents or at law or equity, including all remedies provided under the UCC (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 2 contracts
Samples: Note Purchase Agreement (Zealand Pharma a/S), Note Purchase Agreement (Zealand Pharma a/S)
1Rights and Remedies. (a) Upon the occurrence and during the continuance of While an Event of DefaultDefault occurs and continues, Purchaser the Collateral Agent may, and or at the written direction request of the Required Purchasers shallLenders, will, without notice or demand:
(a) declare all Obligations (including, do for the avoidance of doubt, any or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations amounts payable pursuant to Section 2.2(e) and Section 2.2(f), as applicable) immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount 7.5 occurs, all Obligations, including any and all other Obligations shall be amounts payable pursuant to Section 2.2(e) and Section 2.2(f), as applicable, are automatically and immediately due and payable without any notice, demand or other action by Purchaser the Collateral Agent or any Lender), whereupon all Obligations for principal, interest, premium or otherwise (including, for the Purchasersavoidance of doubt, any and all amounts payable pursuant to Section 2.2(e) and Section 2.2(f), as applicable) shall become due and payable by Borrower without presentment for payment, demand, notice of protest or (iii) other demand or notice of any kind, which are all expressly waived by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers).Credit Parties hereby;
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice stop advancing money or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateralextending credit for Xxxxxxxx’s benefit under this Agreement;
(ii) apply to the Obligations any (a) balances and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser the Collateral Agent considers advisable, notify any Person owing Issuer Borrower money of Purchaser the Collateral Agent’s security interest interest, for the benefit of the Lenders and the other Secured Parties, in such funds, and verify the amount of such accountthe Collateral Accounts;
(iid) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its or the Collateral Agent’s security interest interest, for the benefit of Lenders and the other Secured Parties, in the Collateral. Each Obligor Borrower shall assemble the Collateral if Purchaser the Collateral Agent or the Required Lenders requests and make it available in a location as Purchaser the Collateral Agent reasonably designatesdesignates or the Required Lenders designate. Purchaser The Collateral Agent or its agents or representatives may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which that appears to be prior or superior to its security interest interest, for the benefit of Lenders and the other Secured Parties, and pay all expenses incurred. Each Obligor Borrower grants Purchaser the Collateral Agent a an irrevocable, royalty-free license or other right to enter enter, use, operate and occupy any of (and for its premisesagents or representatives to enter, use, operate and occupy), without charge by charge, any Obligor, such premises to exercise any of Purchaser the Collateral Agent’s or any Lender’s rights or remediesremedies under this Section 8.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, advertise for sale, sell, assign, license out, convey, transfer or grant options to purchase any Collateral);
(e) apply to the Obligations (i) any balances and deposits of Borrower it holds, (ii) any amount held by the Collateral Agent owing to or for the credit or the account of Borrower or (iii) any balance from any Collateral Account of any Credit Party or instruct the bank at which any such Collateral Account is maintained to pay the balance of any such Collateral Account to the Collateral Agent, for the benefit of Lenders and the other Secured Parties, or to any Lender on behalf of itself and the other Secured Parties, as the Collateral Agent shall direct;
(f) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, and sell the Collateral. Purchaser Agent is With respect to any and all Intellectual Property owned or held by any Credit Party and included in Collateral, each Credit Party hereby granted a grants to the Collateral Agent, for the benefit of Lenders and the other Secured Parties: (i) an irrevocable, non-exclusive, assignable, royalty-free license or other right to use (and for its agents or representatives to use), without charge, each Obligor including the right to sublicense, use and each of its Subsidiaries’ labelspractice, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains all such Intellectual Property in order to the Collateral, in completing production take possession of, advertising collect, receive, assemble, process, appropriate, remove, realize upon, advertise for sale, sell, assign, license out, convey, transfer or grant options to purchase any Collateral, and selling access to all media in which any Collateral and, of the licensed items may be recorded or stored and to all Software and programs used for the compilation or printout thereof; and (ii) in connection with Purchaser the Collateral Agent’s exercise of its rights or remedies under this Section 9.18.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral), each ObligorCredit Party’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements Contracts inure to Purchaser Agent, for the benefit of the all Secured Parties;
(ivg) place a “hold” on any account maintained with Purchaser the Collateral Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(vh) demand and receive possession of the Books of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Credit Party regarding Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(viii) subject to Sections 9.1(a) and (b), exercise all rights and remedies available to Purchaser the Collateral Agent and each Purchaser or any Lender under the Note Collateral Documents or any other Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding Each of the Collateral Agent and Xxxxxx agrees that in connection with any foreclosure or other exercise of rights under this Agreement or any other Loan Document with respect to any Intellectual Property included in the Collateral, the rights of the licensees under any license of such Intellectual Property will not be terminated, limited or otherwise adversely affected so long as no default exists thereunder in a way that would permit the licensor to terminate such license (commonly termed a non-disturbance). Without limitation to any other provision of this Section 9.1 to the contraryherein or in any other Loan Document, upon the occurrence of any while an Event of DefaultDefault occurs and continues, Purchaser at the Collateral Agent’s or the Required Lenders’ request, representatives from Borrower and the Collateral Agent shall have promptly meet (in person or telephonically) to discuss in good faith how to collect, receive, appropriate and realize upon Borrower’s rights and interests in, to and under any Company IP Agreement, including in connection with any foreclosure or other exercise of the right Collateral Agent’s or any Lender’s rights with respect thereto. If Borrower and the Collateral Agent do not mutually agree with respect thereto within ten (10) Business Days after such request by the Collateral Agent (or such later date as agreed by the Collateral Agent), then the Collateral Agent may request Borrower to, and Borrower (promptly following the receipt of such request) shall, use reasonable best efforts to exercise any and all remedies referenced in this Section 9.1 without obtain the written consent of Required Purchasers following any counterparty to the occurrence exercise by the Collateral Agent or any Lender of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event and all rights and remedies under this Agreement or circumstance thatany other Loan Document with respect to any Company IP Agreement, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could form and substance reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant satisfactory to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the PurchasersCollateral Agent.
Appears in 1 contract
Samples: Loan Agreement (ImmunoGen, Inc.)
1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent may, and at the written direction of Required Purchasers Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to IssuerBorrower, (ii) by notice to Issuer Borrower declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Collateral Agent or the PurchasersLenders) or (iii) by notice to Issuer Borrower suspend or terminate the Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described in Section 8.5 occurs all Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by Purchaser Collateral Agent or the PurchasersLenders).
(b) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right and at the written direction of the Required PurchasersLenders shall, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral; 37 US-DOCS\149068676.3
(ii) make a demand for payment upon any Guarantor pursuant to the Guaranty delivered by such Guarantor;
(iiiii) apply to the Obligations any (aA) balances and deposits of Issuer Borrower that Purchaser Collateral Agent or any Purchaser Lender holds or controls, or (bB) any amount held or controlled by Purchaser Collateral Agent or any Purchaser Lender owing to or for the credit or the account of Issuer;Borrower, or (C) amounts received from any Guarantors in accordance with the respective Guaranty delivered by such Guarantor; and/or
(iiiiv) commence and prosecute an Insolvency Proceeding or consent to any Obligor Borrower commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the rightright and at the written direction of the Required Lenders shall, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Collateral Agent considers advisable, notify any Person owing Issuer Borrower money of Purchaser Collateral Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest Liens in the CollateralCollateral (held for the ratable benefit of the Secured Parties). Each Obligor Borrower shall assemble the Collateral if Purchaser Collateral Agent requests and make it available in a at such location as Purchaser Collateral Agent reasonably designates. Purchaser Collateral Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor Borrower grants Purchaser Collateral Agent a license to enter and occupy any of its premises, without charge by any Obligorcharge, to exercise any of Purchaser Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, any of the Collateral. Purchaser Collateral Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor Borrower’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Collateral Agent’s exercise of its rights under this Section 9.1, each ObligorXxxxxxxx’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Collateral Agent, for the benefit of the Secured PartiesLenders;
(iv) place a “hold” on any account Collateral Account maintained with Purchaser Collateral Agent or any Lender or otherwise in respect of which a Control Agreement has been delivered in favor of Collateral Agent (for the Purchasers ratable benefit of the Secured Parties) and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any ObligorXxxxxxxx’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent Borrower or any of its Subsidiaries; andand 38 US-DOCS\149068676.3
(vii) subject to Sections clauses 9.1(a) and (b), exercise all rights and remedies available to Purchaser Collateral Agent and each Purchaser Lender under the Note Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Collateral Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers Lenders following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent may, and at the written direction of Required Purchasers Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to IssuerBorrower, (ii) by notice to Issuer Borrower declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Collateral Agent or the PurchasersLenders) or (iii) by notice to Issuer Borrower suspend or terminate the Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described in Section 8.5 occurs all Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by Purchaser Collateral Agent or the PurchasersLenders).
(b) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right at the written direction of the Required PurchasersLenders, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Issuer Borrower that Purchaser Collateral Agent or any Purchaser Lender holds or controls, or (b) any amount held or controlled by Purchaser Collateral Agent or any Purchaser Lender owing to or for the credit or the account of Issuer;Borrower; and/or
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor Borrower commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Collateral Agent considers advisable, notify any Person owing Issuer Borrower money of Purchaser Collateral Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor Borrower shall assemble the Collateral if Purchaser Collateral Agent requests and make it available in a location as Purchaser Collateral Agent reasonably designates. Purchaser Collateral Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor Borrower grants Purchaser Collateral Agent a license to enter and occupy any of its premises, without charge by any Obligorcharge, to exercise any of Purchaser Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Collateral Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor Borrower’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Collateral Agent’s exercise of its rights under this Section 9.1, each ObligorBorrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Collateral Agent, for the benefit of the Secured PartiesLenders;
(iv) place a “hold” on any account maintained with Purchaser Collateral Agent or the Purchasers Lenders and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any ObligorBorrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent Borrower or any of its Subsidiaries; and
(vii) subject to Sections clauses 9.1(a) and (b), exercise all rights and remedies available to Purchaser Collateral Agent and each Purchaser Lender under the Note Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Collateral Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers Lenders following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is means any event or circumstance that, in the reasonable judgment of Purchaser Collateral Agent, imminently threatens the ability of Purchaser Collateral Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent Borrower or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
1Rights and Remedies. (a) Upon the occurrence and during the continuance continuation of an Event of Default, Purchaser Agent may, and and, at the written direction instruction of the Required Purchasers Lenders, shall, without notice in addition to any other rights or demandremedies provided for hereunder or under any other Loan Document or by applicable law, do any one or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers).
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all more of the following:
(a) by written notice to Borrowers, (i) foreclose upon and/or sell or otherwise liquidatedeclare the principal of, and any and all accrued and unpaid interest and fees in respect of, the CollateralLoans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b) by written notice to Xxxxxxxxx, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with (i) any obligation of any Revolving Lender to make Revolving Loans, (ii) apply the obligation of the Swing Lender to the Obligations any (a) balances make Swing Loans, and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent the obligation of Issuing Bank to any Obligor commencing any Insolvency Proceedingissue Letters of Credit; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.and
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties;
(iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(vii) subject to Sections 9.1(a) and (b), exercise all other rights and remedies available to Purchaser Agent and each Purchaser or the Lenders under the Note Documents Loan Documents, under applicable law, or at law or in equity; provided, including all remedies provided under the UCC (including disposal of the Collateral pursuant that with respect to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of DefaultDefault resulting solely from failure of Borrowers to comply with the financial covenant set forth in Section 7 of this Agreement, Purchaser neither Agent shall have nor the right to Required Lenders may exercise any and all the foregoing remedies referenced in this Section 9.1 without until the written consent date that is the earlier of Required Purchasers following (i) ten Business Days after the occurrence of an Exigent Circumstance. As used in day on which financial statements are required to be delivered for the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstanceapplicable fiscal quarter, and each of (ii) the Obligors hereby waives any defense to payment, whether date that Agent receives notice that there will not be a Curative Equity contribution made for such defense may be based in public policy, ambiguity, or otherwisefiscal quarter. The Obligors further acknowledge [AerSale] Amended and agree, and waive any argument to the contrary, that payment of such amounts Restated Credit Agreement does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
Samples: Credit Agreement (AerSale Corp)
1Rights and Remedies. (a) Upon the occurrence and during the continuance continuation of an Event of Default, Purchaser Agent may, and and, at the written direction instruction of the Required Purchasers Lenders, shall, without notice in addition to any other rights or demandremedies provided for hereunder or under any other Loan Document or by applicable law, do any one or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers).
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all more of the following:
(a) by written notice to Borrowers, (i) foreclose upon and/or sell or otherwise liquidatedeclare the principal of, and any and all accrued and unpaid interest and fees in respect of, the CollateralLoans and all other Obligations (other than the Contingent Surviving Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b) by written notice to Xxxxxxxxx, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with (i) any obligation of any Revolving Lender to make Revolving Loans, (ii) apply the obligation of the Swing Lender to the Obligations any (a) balances make Swing Loans, and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent the obligation of Issuing Bank to any Obligor commencing any Insolvency Proceedingissue Letters of Credit; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.and
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties;
(iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(vii) subject to Sections 9.1(a) and (b), exercise all other rights and remedies available to Purchaser Agent and each Purchaser or the Lenders under the Note Documents Loan Documents, under applicable law, or at law or in equity, including all remedies provided under the UCC (including disposal of the Collateral pursuant . The foregoing to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrarycontrary notwithstanding, upon the occurrence of any Event of DefaultDefault described in Section 8.4 or Section 8.5, Purchaser Agent in addition to the remedies set forth above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall have automatically terminate and the right to exercise Obligations (other than the Contingent Surviving Obligations), inclusive of the principal of, and any and all remedies referenced accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Contingent Surviving Obligations), whether evidenced by this Section 9.1 Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically be obligated to repay all of such Obligations in full (including Borrowers being obligated to
(1) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers’ or their Subsidiaries’ obligations in respect of outstanding Bank Products), without presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived by Parent and Borrowers. If any amount remains on deposit as Letter of Credit Collateralization after all Letters of Credit have either been fully drawn or expired, terminated, cancelled or returned, such remaining amount shall be applied to the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentenceother Obligations, “Exigent Circumstance” is any event or circumstance thatif any, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, order set forth in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a2.4(b)(ii), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
1Rights and Remedies. (a) Upon the occurrence and during the continuance continuation of an Event of Default, Purchaser Agent may, and and, at the written direction instruction of the Required Purchasers Lenders, shall, without notice in addition to any other rights or demandremedies provided for hereunder or under any other Loan Document or by applicable law, do any one or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers).
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all more of the following:
(a) by written notice to Borrowers, (i) foreclose upon and/or sell or otherwise liquidatedeclare the principal of, and any and all accrued and unpaid interest and fees in respect of, the CollateralLoans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b) by written notice to Xxxxxxxxx, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with (i) any obligation of any Revolving Lender to make Revolving Loans, (ii) apply the obligation of the Swing Lender to the Obligations any (a) balances make Swing Loans, and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent the obligation of Issuing Bank to any Obligor commencing any Insolvency Proceedingissue Letters of Credit; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.and
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties;
(iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(vii) subject to Sections 9.1(a) and (b), exercise all other rights and remedies available to Purchaser Agent and each Purchaser or the Lenders under the Note Documents Loan Documents, under applicable law, or at law or in equity; provided, including all remedies provided under the UCC (including disposal of the Collateral pursuant that with respect to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of DefaultDefault resulting solely from failure of Borrowers to comply with the financial covenant set forth in Section 7 of this Agreement, Purchaser neither Agent shall have nor the right to Required Lenders may exercise any and all the foregoing remedies referenced in this Section 9.1 without until the written consent date that is the earlier of Required Purchasers following (i) ten Business Days after the occurrence day on which financial statements are required to be delivered for the applicable fiscal quarter, and (ii) the date that Agent receives notice that there will not be a Curative Equity contribution made for such fiscal quarter.
(1) Letter of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Credit Collateralization to Agent to realize upon all be held as security for Borrowers’ reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers’ or any material portion their Subsidiaries’ obligations in respect of the Collateral, such asoutstanding Bank Products), without limitationpresentment, fraudulent removaldemand, concealmentprotest, or abscondment thereof, destruction notice or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise other requirements of any bankruptcy right or powerkind, whether in any plan all of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge which are expressly waived by each Parent Company and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the PurchasersBorrowers.
Appears in 1 contract
Samples: Credit Agreement (AerSale Corp)
1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent may, and at the written direction of Required Purchasers Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to IssuerBorrower, (ii) by notice to Issuer Borrower declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Collateral Agent or the PurchasersLenders) or (iii) by notice to Issuer Borrower suspend or terminate the Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described in Section 8.5 occurs all Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by Purchaser Collateral Agent or the PurchasersLenders).
(b) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right at the written direction of the Required Purchasersright, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Issuer Borrower that Purchaser Collateral Agent or any Purchaser Lender holds or controls, or (b) any amount held or controlled by Purchaser Collateral Agent or any Purchaser Lender owing to or for the credit or the account of Issuer;Borrower; and/or
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor Borrower commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Collateral Agent considers advisable, notify any Person owing Issuer Borrower money of Purchaser Collateral Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor Borrower shall assemble the Collateral if Purchaser Collateral Agent requests and make it available in a location as Purchaser Collateral Agent reasonably designates. Purchaser Collateral Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor Borrower grants Purchaser Collateral Agent a license to enter and occupy any of its premises, without charge by any Obligorcharge, to exercise any of Purchaser Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Collateral Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor Borrower’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Collateral Agent’s exercise of its rights under this Section 9.1, each ObligorBorrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Collateral Agent, for the benefit of the Secured PartiesLenders;
(iv) place a “hold” on any account maintained with Purchaser Collateral Agent or the Purchasers Lenders and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any ObligorBorrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent Borrower or any of its Subsidiaries; and;
(vii) subject to Sections clauses 9.1(a) and (b), exercise all rights and remedies available to Purchaser Collateral Agent and each Purchaser Lender under the Note Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding ;
(viii) for any provision Letters of this Section 9.1 Credit, demand that Borrower (i) deposit cash with Bank in an amount equal to the contrary(x) if such Letters of Credit are denominated in Dollars, upon the occurrence then one hundred five percent (105%); and (y) if such Letters of any Event of Default, Purchaser Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result Credit are denominated in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reasonForeign Currency, whether due to acceleration pursuant to the terms of this Agreement then one hundred ten percent (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a110%), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.the
Appears in 1 contract
Samples: Loan and Security Agreement (Scholar Rock Holding Corp)
1Rights and Remedies. (a) Upon the occurrence and during the continuance (unless Agent has accelerated the debt hereunder) of an Event of Default, Purchaser Agent may, and at the written direction of Required Purchasers shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in pursuant to Section 8.5 occurs the Repayment Amount and 10.7 (other than Section 10.7(vii)), all other Obligations shall be immediately due and payable without and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any action by Purchaser of the other Events of Default and at any time thereafter (such default not having previously been waived or, to the extent curable pursuant to 11.1(c), so cured), at the option of Agent or at the Purchasers) direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) by notice without limiting Section 8.2 hereof, any Default under Section 10.7(vii) hereof, the obligation of Lenders to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments make Advances hereunder shall be immediately terminated without any action by Purchaser Agent or the Purchasers).
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties;
(iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(vii) subject to Sections 9.1(a) and (b), exercise all rights and remedies available to Purchaser Agent and each Purchaser under the Note Documents or at law or equity, including all remedies provided under the UCC (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Agent shall have the right to exercise any and all rights and remedies referenced provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual non-revocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 9.1 without 11.1(b). Without limitation upon the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the immediately preceding sentence, “Exigent Circumstance” is any event absence of this Section 11.1(b).
(c) Notwithstanding anything to the contrary contained in Section 6.5 or circumstance thatSection 10.5, in the reasonable judgment event that Loan Parties fail to comply with any of Purchaser Agentthe financial covenants set forth in Section 6.5 (the “Financial Covenants”), imminently threatens then until the ability date on which the Compliance Certificate in respect of Purchaser Agent the applicable fiscal quarter is required to realize upon all be delivered pursuant to Section 9.8, any existing owner or owners of the Equity Interests of any Loan Party or any material portion other Person in connection with any public offering of Equity Interests, may (i) purchase or irrevocably commit to purchase Equity Interests of Holdings for cash and (ii) make payment for such Equity Interests within thirty (30) Business Days of such commitment; provided, that Holdings shall, if it elects to exercise its rights under this clause (c), promptly upon receipt of such payment contribute 100% of such payment to the capital of Loan Parties (collectively, the “Cure Right”), and upon the receipt by Loan Parties of such cash (the “Specified Equity Contribution” and the amount of such Specified Equity Contribution, the “Cure Amount”) pursuant to the exercise of such Cure Right, the applicable Financial Covenant(s) shall be recalculated giving effect to the Specified Equity Contribution (for example, any expenditure in violation of a covenant shall be deemed to have been made with the Specified Equity Contribution and therefore permitted). If, after giving effect to the foregoing recalculations, Loan Parties shall then be in compliance with the requirements of all Financial Covenants, Loan Parties shall be deemed to have complied with the Financial Covenants as of the Collateralrelevant date of determination with the same effect as though there had been no failure to comply therewith at such date, such as, without limitation, fraudulent removal, concealment, and the applicable breach or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value default of the CollateralFinancial Covenants that had occurred shall be deemed cured for the purposes of this Agreement. No more than five (5) Specified Equity Contributions shall be allowed during the term of this Agreement and there must be at least two fiscal quarters in each four fiscal quarter period in which there is no Specified Equity Contribution. For purposes of recalculating the Financial Covenants with respect to a Cure Amount (i) Consolidated Adjusted EBITDA shall be increased by an amount equal to the Cure Amount with respect to the applicable fiscal quarter and any calculation period that contains such fiscal quarter for the purpose of calculating the Fixed Charge Coverage Ratio; (ii) Consolidated Adjusted EBITDA shall be increased by an amount equal to the Cure Amount with respect to the applicable fiscal quarter (and only such applicable fiscal quarter) for the purpose of calculating the Funded Debt to Consolidated Adjusted EBITDA Ratio; and (iii) Indebtedness shall be decreased for purposes of determining compliance solely to the extent proceeds of the Cure Amount are actually applied to prepay any Indebtedness and in no event shall any reduction be given effect during the fiscal quarter with regard to which the Cure Right is exercised. For the avoidance of doubt the Repayment Amount shall be due doubt, amounts applied as a “Cure Amount” under and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including as defined in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers Term Loan Agreement shall receive the benefit of their bargain hereunder and otherwise receive full recovery also be permitted to be applied as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the PurchasersCure Amount hereunder.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Daseke, Inc.)
1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Agent may, and at the written direction of Required Purchasers shallor solely with respect to clause (b) any Lender may, without notice or demand, do any or all of the following: :
(ia) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be are immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the PurchasersAgent).;
(b) Without limiting the rights of Purchaser Agent stop advancing money or extending credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuersuch Lender;
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting verify the rights amount of, demand payment of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) performance under, and (b) abovecollect any Accounts and General Intangibles, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, and notify any Person owing Issuer Borrower money of Purchaser Agent’s security interest in such funds. Borrower shall collect all payments in trust for Agent and, and verify if requested by Agent, immediately deliver the amount of such accountpayments to Agent in the form received from the Account Debtor, with proper endorsements for deposit;
(iid) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor Borrower shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor Borrower grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any ObligorBorrower, to exercise any of Purchaser Agent’s rights or remedies;
(iiie) apply to the outstanding Obligations (including any Obligations accelerated in accordance with this Section 9.1 and pursuant to the Code) any (i) balances and deposits of Borrower it holds (other than the Excluded Accounts, which, for the avoidance of doubt shall not contain (in the aggregate) more than two pay periods’ worth of Borrower’s payroll obligations), or (ii) amount held by Agent owing to or for the credit or the account of Borrower;
(f) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, and sell the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ Borrower’s labels, patentsPatents, copyrightsCopyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marksTrademarks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each ObligorBorrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties’s benefit;
(ivg) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(vh) demand and receive possession of any ObligorBorrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(viii) subject to Sections 9.1(a) and (b), exercise all rights and remedies available to Purchaser Agent and each Purchaser under the Note Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
Samples: Loan and Security Agreement (Mountain Crest Acquisition Corp II)
1Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent may, and at the written direction of Required Purchasers Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to IssuerBorrower, (ii) by notice to Issuer Borrower declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Collateral Agent or the PurchasersLenders) or (iii) by notice to Issuer Borrower suspend or terminate the Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described in Section 8.5 occurs all Commitments obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by Purchaser Collateral Agent or the PurchasersLenders).
(b) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right at the written direction of the Required Purchasersright, without notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) apply to the Obligations any (a) balances and deposits of Issuer Borrower that Purchaser Collateral Agent or any Purchaser Lender holds or controls, or (b) any amount held or controlled by Purchaser Collateral Agent or any Purchaser Lender owing to or for the credit or the account of Issuer;Borrower; and/or
(iii) commence and prosecute an Insolvency Proceeding or consent to any Obligor Borrower commencing any Insolvency Proceeding; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.
(c) Without limiting the rights of Purchaser Collateral Agent and the Purchasers Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Collateral Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Collateral Agent considers advisable, notify any Person owing Issuer Borrower money of Purchaser Collateral Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor Borrower shall assemble the Collateral if Purchaser Collateral Agent requests and make it available in a location as Purchaser Collateral Agent reasonably designates. Purchaser Collateral Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor Borrower grants Purchaser Collateral Agent a license to enter and occupy any of its premises, without charge by any Obligorcharge, to exercise any of Purchaser Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Collateral Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor Borrower’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Collateral Agent’s exercise of its rights under this Section 9.1, each ObligorBorrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Collateral Agent, for the benefit of the Secured PartiesLenders;
(iv) place a “hold” on any account maintained with Purchaser Collateral Agent or the Purchasers Lenders and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any ObligorBorrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent Borrower or any of its Subsidiaries; and
(vii) subject to Sections clauses 9.1(a) and (b), exercise all rights and remedies available to Purchaser Collateral Agent and each Purchaser Lender under the Note Loan Documents or at law or equity, including all remedies provided under the UCC Code (including disposal of the Collateral pursuant to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Purchaser Collateral Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Purchasers Lenders following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is means any event or circumstance that, in the reasonable judgment of Purchaser Collateral Agent, imminently threatens the ability of Purchaser Collateral Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent Borrower or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be due and payable at any time the Obligations become due and payable or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(a), or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law or otherwise (including where bankruptcy filings or the exercise of any bankruptcy right or power, whether in any plan of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof by any Obligor shall constitute secured obligations owing to the Purchasers.
Appears in 1 contract
Samples: Loan and Security Agreement (Kala Pharmaceuticals, Inc.)
1Rights and Remedies. (a) Upon the occurrence and during the continuance continuation of an Event of Default, Purchaser Agent may, and and, at the written direction instruction of the Required Purchasers Lenders, shall, without notice in addition to any other rights or demandremedies provided for hereunder or under any other Loan Document or by applicable law, do any one or all of the following: (i) deliver notice of the Event of Default to Issuer, (ii) by notice to Issuer declare the Repayment Amount and all other Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs the Repayment Amount and all other Obligations shall be immediately due and payable without any action by Purchaser Agent or the Purchasers) or (iii) by notice to Issuer suspend or terminate the Commitments (but if an Event of Default described in Section 8.5 occurs all Commitments shall be immediately terminated without any action by Purchaser Agent or the Purchasers).
(b) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right at the written direction of the Required Purchasers, without notice or demand, to do any or all more of the following:
(a) by written notice to Borrowers, (i) foreclose upon and/or sell or otherwise liquidatedeclare the principal of, and any and all accrued and unpaid interest and fees in respect of, the CollateralLoans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b) by written notice to Xxxxxxxxx, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with (i) any obligation of any Revolving Lender to make Revolving Loans, (ii) apply the obligation of the Swing Lender to the Obligations any (a) balances make Swing Loans, and deposits of Issuer that Purchaser Agent or any Purchaser holds or controls, or (b) any amount held or controlled by Purchaser Agent or any Purchaser owing to or for the credit or the account of Issuer;
(iii) commence and prosecute an Insolvency Proceeding or consent the obligation of Issuing Bank to any Obligor commencing any Insolvency Proceedingissue Letters of Credit; and/or
(iv) exercise all of its rights and remedies as provided under the Foreign Collateral Documents.and
(c) Without limiting the rights of Purchaser Agent and the Purchasers set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Purchaser Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Purchaser Agent considers advisable, notify any Person owing Issuer money of Purchaser Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Each Obligor shall assemble the Collateral if Purchaser Agent requests and make it available in a location as Purchaser Agent reasonably designates. Purchaser Agent may peaceably enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Each Obligor grants Purchaser Agent a license to enter and occupy any of its premises, without charge by any Obligor, to exercise any of Purchaser Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Purchaser Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Obligor and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Purchaser Agent’s exercise of its rights under this Section 9.1, each Obligor’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Purchaser Agent, for the benefit of the Secured Parties;
(iv) place a “hold” on any account maintained with Purchaser Agent or the Purchasers and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of any Obligor’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Parent or any of its Subsidiaries; and
(vii) subject to Sections 9.1(a) and (b), exercise all other rights and remedies available to Purchaser Agent and each Purchaser or the Lenders under the Note Documents Loan Documents, under applicable law, or at law or in equity, including all remedies provided under the UCC (including disposal of the Collateral pursuant . The foregoing to the terms thereof). Notwithstanding any provision of this Section 9.1 to the contrarycontrary notwithstanding, upon the occurrence of any Event of DefaultDefault described in Section 8.4 or Section 8.5, Purchaser Agent in addition to the remedies set forth above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall have automatically terminate and the right to exercise Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all remedies referenced accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Section 9.1 without the written consent of Required Purchasers following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” is Agreement or by any event or circumstance that, in the reasonable judgment of Purchaser Agent, imminently threatens the ability of Purchaser Agent to realize upon all or any material portion of the Collateralother Loan Documents, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Parent or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Purchaser Agent, could reasonably shall automatically become and be expected to result in a material diminution in value of the Collateral. For the avoidance of doubt the Repayment Amount shall be immediately due and payable at any time the Obligations become due and payable Borrowers shall automatically be obligated
(1) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers’ or are otherwise accelerated hereunder for any reason, whether due to acceleration pursuant to the terms their Subsidiaries’ obligations in respect of this Agreement (in which case it shall be due immediately, upon the giving of notice to Issuer in accordance with Section 9.1(aoutstanding Bank Products unless expressly waived by such Bank Provider), without presentment, demand, protest, or automatically, in accordance with the parenthetical to Section 9.1(a)(ii)), by operation of law notice or otherwise (including where bankruptcy filings or the exercise other requirements of any bankruptcy right or powerkind, whether in any plan all of reorganization or otherwise, results or would result in a payment, discharge, modification or other treatment of the Notes or Note Documents that would otherwise evade, avoid, or otherwise disappoint the expectations of the Purchasers in receiving the full benefit of their bargained-for Repayment Amount). The Obligors acknowledge and agree that none of the Repayment Amount shall constitute unmatured interest, whether under section 502(b)(2) of the United States Bankruptcy Code or otherwise, but instead is reasonably calculated to ensure that the Purchasers receive the benefit of their bargain under the terms of this Agreement. The Obligors acknowledge and agree that the Purchasers shall be entitled to recover the full amount of the Repayment Amount in each and every circumstance such amount is due pursuant to or in connection with this Agreement, including in the case of any Insolvency Proceeding affecting Parent or any of its Subsidiaries, so that the Purchasers shall receive the benefit of their bargain hereunder and otherwise receive full recovery as agreed under every possible circumstance, and each of the Obligors hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors further acknowledge and agree, and waive any argument to the contrary, that payment of such amounts does not constitute a penalty or an otherwise unenforceable or invalid obligation. Any damages that the Purchasers may suffer or incur resulting from or arising in connection with any breach hereof or thereof which are expressly waived by any Obligor shall constitute secured obligations owing to the PurchasersBorrowers.
Appears in 1 contract
