Actions upon Event of Default. Upon request by the Lender during the existence of an Event of Default, each Borrower will forthwith, upon receipt, transmit and deliver to the Lender, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at any time in full or partial payment or otherwise as Proceeds of any of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower during the existence of an Event of Default will not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply all or any of the then balance, representing collected funds, in any Cash Collateral Account, toward payment of the Obligations, whether or not then due, in such order of application as the Lender may determine, and the Lender may, from time to time, in its discretion, release all or any of such balance to the Borrowers.
Appears in 5 contracts
Samples: Restructure Agreement (Peak Resorts Inc), Master Credit and Security Agreement (Peak Resorts Inc), Master Credit and Security Agreement (Peak Resorts Inc)
Actions upon Event of Default. Upon request by the Lender during the existence of an Event of Default(a) In addition to its rights and remedies provided hereunder, each Borrower will forthwith, upon receipt, transmit and deliver to the Lender, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at whenever any time in full or partial payment or otherwise as Proceeds of any of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower during the existence of an Event of Default will has occurred and is continuing, the Agent shall have all rights and remedies of a secured party upon default under the U.C.C. (whether or not the U.C.C. applies to the affected Pledged Collateral) or other applicable law, and also may, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sales, at any one of the Agent's offices or elsewhere, for cash or credit or for future delivery, without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable. Each Pledgor agrees that, to the extent notice of sale shall be required by applicable law, at least ten (10) days' notice to each Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be commingled with obligated to make any other sale of its funds Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or propertyprivate sale from time to time by announcement at the time and place fixed therefor, but will and such sale may, without further notice, be held separate made at the time and apart from its own funds or property and upon express trust for place to which it was so adjourned. Without limitation of the Lender until delivery is made to above, the Lender. Each Borrower will comply with the terms and conditions of Agent may, whenever any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”)has occurred and is continuing, all items or amounts which are delivered by each Borrower without prior notice to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the LenderPledgor, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply take all or any of the then balance, representing collected funds, in following actions:
(i) vote any Cash Collateral Account, toward payment or all of the Obligations, Pledged Shares (whether or not then duethe same shall have been transferred into its name or the name of its nominee or nominees) for any lawful purpose, give all consents, waivers and ratifications in such order respect of application as the Lender may determinePledged Shares, and otherwise act with respect thereto as though it were the Lender mayoutright owner thereof;
(ii) transfer all or any part of the Pledged Collateral into the name of the Agent or its nominee, from time with or without disclosing that such Pledged Collateral is subject to timethe lien hereunder;
(iii) enforce collection of any of the Pledged Collateral by suit or otherwise, in its discretionand surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) endorse any checks, drafts or other writings in the name of any Pledgor to allow collection of the Pledged Collateral pledged by such Pledgor hereunder;
(v) take control of any products or proceeds of the Pledged Collateral;
(vi) execute (in the name, place and stead of any Pledgor) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Pledged Collateral; and
(vii) generally, do all such balance other acts and things as may be considered incidental or conducive to any of the matters or powers mentioned in the foregoing provisions of this paragraph (a) and which the Agent may or can do lawfully and to use the name of any Pledgor for such purposes and in any proceedings arising therefrom.
(b) If the Agent shall determine to exercise its right to sell any or all of the Pledged Shares pursuant to this ss.6.1, and if in the opinion of counsel for the Agent it is necessary, or if in the reasonable opinion of the Agent it is advisable, to have the Pledged Shares, or that portion thereof to be sold, registered under the provisions of the Securities Act of 1933, as amended (the "Securities Act"), the Pledgors agree to cause the Pledged Share Issuer to execute and deliver, and cause the directors and officers of the Pledged Share Issuer to execute and deliver, without any cost or expense to any of the Secured Parties, all such Instruments, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Agent, advisable to register such Pledged Shares under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for a period of nine (9) months from the date such registration statement became effective, and to make all amendments and supplements thereto or to the Borrowers.related prospectus or both that, in the reasonable opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the SEC applicable
Appears in 1 contract
Actions upon Event of Default. Upon request by the Lender during the existence of an If any Event of DefaultDefault shall have occurred and be continuing and the Administrative Agent shall have declared the Facility Termination Date to have occurred or the Facility Termination Date shall be deemed to have occurred pursuant to SECTION 8.01, each then the Administrative Agent may exercise in respect of the Borrower will forthwithCollateral, upon receiptin addition to any and all other rights and remedies granted to it hereunder, transmit and deliver under any other Related Document or under any other instrument or agreement securing, evidencing or relating to the LenderBorrower Obligations or otherwise available to it, all of the rights and remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive), and, in addition, may take the form receivedfollowing actions:
(a) The Administrative Agent may (and, all cashpursuant to the terms of the Control Agreement, checksmay instruct the Custodians to), drafts without notice to the Borrower except as required by law and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at any time in full or partial payment or otherwise as Proceeds of any of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower during the existence of an Event of Default will not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, charge, offset or otherwise apply amounts payable to the Borrower from any Custodial Account, either Collection Account, either Retention Account or any part of such accounts in its discretionaccordance with the priorities set forth in SECTION 2.07 against all or any part of the Borrower Obligations.
(b) The Administrative Agent may, without notice except as specified below, solicit and accept bids for and sell the Borrower Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker's board or any Lender's or any Agent's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. The Administrative Agent shall have the right to conduct such sales on the Borrower's premises or elsewhere and shall have the right to use any of the Borrower's premises without charge for such sales at such time or times as the Administrative Agent deems necessary or advisable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Borrower Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in and to the Borrower Collateral so sold, and shall upon request be a perpetual bar, both at law and in equity, against any Service Provider, the Borrower, any Person claiming the Borrower Collateral sold through a Service Provider or the Borrower, and their respective successors or assigns. The Administrative Agent shall deposit the net proceeds of any such sale in the Collection Account and such proceeds shall be disbursed in accordance with SECTION 2.07.
(c) Upon the completion of any sale under SECTION 9.01(B), the Borrower and the Servicer shall, and shall cause the other Service Providers to, deliver or cause to be delivered to the purchaser or purchasers at such sale on the date thereof, or within a reasonable time thereafter if it shall be impracticable to make immediate delivery, all of the Borrower Representative made not more than once Collateral sold on such date, but in any weekevent full title and right of possession to such property shall vest in such purchaser or purchasers upon the completion of such sale. Nevertheless, apply if so requested by the Administrative Agent or by any such Lender, the Borrower shall confirm any such sale or transfer by executing and delivering to such Lender all or proper instruments of conveyance and transfer and releases as may be designated in any such request.
(d) At any sale under SECTION 9.01(B), any of the then balanceLenders, representing collected fundsthe Agents or the Conduit Lender Secured Party may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such property without further accountability therefor.
(e) The Administrative Agent may exercise, at the sole cost and expense of the Borrower, any and all rights and remedies of the Borrower under or in connection with the Borrower Pledged Agreements or the other Borrower Collateral, including any Cash Collateral Account, toward and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provisions of, the Obligations, whether or not then due, in such order of application as the Lender may determine, and the Lender may, from time to time, in its discretion, release all or any of such balance to the BorrowersBorrower Pledged Agreements.
Appears in 1 contract
Actions upon Event of Default. Upon request (a) In addition to its rights and remedies provided hereunder, whenever any Event of Default is continuing, the Agent shall have all rights and remedies of a secured party upon default under the U.C.C. (whether or not the U.C.C. applies to the affected Pledged Collateral) or other applicable law, and also may, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sales, at any one of the Agent's offices or elsewhere, for cash or credit or for future delivery, without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law, at least ten days' notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Without limitation of the above, the Agent may, whenever any Event of Default is continuing, without prior notice to the Pledgor, take all or any of the following actions:
(i) vote any or all of the Pledged Units (whether or not the same shall have been transferred into its name or the name of its nominee or nominees) for any lawful purpose, give all consents, waivers and ratifications in respect of the Pledged Units, and otherwise act with respect thereto as though it were the outright owner thereof;
(ii) transfer all or any part of the Pledged Collateral into the name of the Agent or its nominee, with or without disclosing that such Pledged Collateral is subject to the lien hereunder;
(iii) enforce collection of any of the Pledged Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) endorse any checks, drafts or other writings in the name of the Pledgor to allow collection of the Pledged Collateral pledged by the Lender during Pledgor hereunder;
(v) take control of any products or proceeds of the existence Pledged Collateral;
(vi) execute (in the name, place and stead of the Pledgor) endorsements, assignments, and other instruments of conveyance or transfer with respect to all or any of the Pledged Collateral; and
(vii) generally, do all such other acts and things as may be considered incidental or conducive to any of the matters or powers mentioned in the foregoing provisions of this paragraph (a) and which the Agent may or can do lawfully and to use the name of the Pledgor for such purposes and in any proceedings arising therefrom.
(b) If the Agent shall determine to exercise its right to sell any or all of the Pledged Units pursuant to this 6.1, and if in the opinion of counsel for the Agent it is necessary, or if in the reasonable opinion of the Agent it is advisable, to have the Pledged Units, or that portion thereof to be sold, registered under the provisions of the Securities Act of 1933, as amended (the "Securities Act"), the Pledgor agrees to cause the Pledged Unit Issuer to execute and deliver, and cause the directors and officers of the Pledged Unit Issuer to execute and deliver, without any cost or expense to any of the Secured Parties, all such Instruments, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Agent, advisable to register such Pledged Units under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for a period of nine (9) months from the date such registration statement became effective, and to make all amendments thereto or to the related prospectus or both that, in the reasonable opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the SEC applicable thereto. The Pledgor agrees to cause such Pledged Unit Issuer to comply with the provisions of the securities or "Blue Sky" laws of any jurisdiction which the Agent shall designate and to cause such to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of 11(a) of the Securities Act.
(c) The Pledgor recognizes that the Agent may be unable to effect a public sale of the Pledged Units by reason of certain prohibitions contained in the Securities Act, and other applicable laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers. The Pledgor agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. The Agent shall be under no obligation to delay a sale of any of the Pledged Units for the period of time necessary to permit the applicable Pledged Unit Issuer to register such Pledged Units for public sale under the Securities Act, or other Applicable Laws, even if such Pledged Unit Issuer would agree to do so.
(d) So long as an Event of DefaultDefault is continuing, each Borrower will forthwiththe Pledgor shall, upon receiptthe request of the Agent, transmit take or cause to be taken (or, if the Pledgor does not have the legal right to take such action or cause such action to be taken, the Pledgor will use its best efforts to cause such action to be taken), in good faith and promptly, and without any cost or expense to any of the Secured Parties, all such action as may be necessary or desirable, as soon as reasonably practicable, to sell or to effect the sale of the Pledged Units of any Pledged Unit Issuer pledged by the Pledgor hereunder. Such action shall include but shall not be limited to the following:
(i) the Pledgor shall prepare and deliver to the LenderAgent as soon as practicable, but in any event not later than thirty (30) days after request by the Agent, a written plan for the sale or other disposition of such Pledged Units, which plan shall be reasonably satisfactory in form and substance to the Majority Banks;
(ii) the Pledgor shall and shall cause any Pledged Unit Issuer to retain such investment banking firms, accountants, appraisers and other consultants who are reasonably acceptable to the Majority Banks to make recommendations with respect to and to assist in such sale, and the Pledgor shall cause such investment banking firms, accountants, appraisers and other consultants to furnish the Agent with all such financial reports, appraisals, opinions and other documents which the Agent shall reasonably request; and
(iii) if (and on each occasion that) the Pledgor or any Pledged Unit Issuer shall receive from any Person an offer to purchase any such Pledged Units, the Pledgor shall and shall cause the applicable Pledged Unit Issuer to furnish or cause to be furnished to the Agent a written notice setting forth the full particulars thereof, including (A) the name and address of such Person, and (B) the terms of such offer to purchase. Each purchaser of any of the Pledged Units, and the agreement entered into by such purchaser in connection with such purchase and sale, shall be subject to the prior written agreement, consent or approval of the Majority Banks. The Pledgor shall and shall cause each of its Subsidiaries to deliver forthwith to the Agent in the form received, all cash, checks, drafts and other instruments or writings except for the addition of any endorsement or assignment necessary to effect transfer of all rights therein to the Agent, any payment of money (properly endorsed, where required, so that such items may be collected received by the Lender) which may be received by such Borrower at Pledgor or any time in full or partial payment or otherwise as Proceeds of its Subsidiaries on account of any such purchase and sale of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may Pledged Units. Until so delivered, each such payment shall be so received by such Borrower during held in trust for the existence of an Event of Default will Agent and shall not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply all Pledgor or any of the then balance, representing collected funds, in its Subsidiaries.
(e) The Agent may buy any Cash Collateral Account, toward payment part or all of the ObligationsPledged Collateral at any public sale and if any part or all of the Pledged Collateral is of a type customarily sold in a recognized market, whether or not then dueis of the type which is the subject of widely distributed price standard price quotations, in such order of application as the Lender Agent may determinebuy at private sale, and the Lender may, from time to time, in its discretion, release all or may make payments thereof by any of such balance to the Borrowersmeans.
Appears in 1 contract
Actions upon Event of Default. Upon request by If any Event of Default shall have occurred and be continuing and the Lender during Agent shall have declared the existence Facility Termination Date to have occurred or the Facility Termination Date shall be deemed to have occurred pursuant to Section 8.01, then the Lender Agent may exercise in respect of an Event of Defaultthe Borrower Collateral, each Borrower will forthwithin addition to any and all other rights and remedies granted to it hereunder, upon receiptunder any other Related Document or under any other instrument or agreement securing, transmit and deliver evidencing or relating to the LenderBorrower Obligations or otherwise available to it, all of the rights and remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive), and, in addition, may take the form receivedfollowing actions:
(a) The Lender Agent may (and, all cashpursuant to the terms of the Control Agreement, checksmay instruct the Custodians to), drafts without notice to the Borrower except as required by law and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at any time in full or partial payment or otherwise as Proceeds of any of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower during the existence of an Event of Default will not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, charge, offset or otherwise apply amounts payable to the Borrower from any Custodial Account, either Collection Account, either Retention Account or any part of such accounts in its discretion, and shall upon request accordance with the priorities set forth in Section 2.07 against all or any part of the Borrower Representative made not Obligations.
(b) The Lender Agent may, without notice except as specified below, solicit and accept bids for and sell the Borrower Collateral or any part thereof in one or more than once in parcels at public or private sale, at any weekexchange, apply all broker's board or any of the then balanceLender's, representing collected fundsLender Agent's, in any Cash Operating Agent's or Collateral AccountAgent's offices or elsewhere, toward payment of the Obligationsfor cash, whether on credit or not then duefor future delivery, in and upon such order of application other terms as the Lender Agent may determine, deem commercially reasonable. The Lender Agent shall have the right to conduct such sales on the Borrower's premises or elsewhere and shall have the right to use any of the Borrower's premises without charge for such sales at such time or times as the Lender mayAgent deems necessary or advisable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Lender Agent shall not be obligated to make any sale of Borrower Collateral regardless of notice of sale having been given. The Lender Agent may adjourn any public or private sale from time to timetime by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in its discretionand to the Borrower Collateral so sold, release and shall be a perpetual bar, both at law and in equity, against any Service Provider, the Borrower, any Person claiming the Borrower Collateral sold through a Service Provider or the Borrower, and their respective successors or assigns. The Lender Agent shall deposit the net proceeds of any such sale in the Master Collection Account and such proceeds shall be disbursed in accordance with Section 2.07.
(c) Upon the completion of any sale under Section 9.01(b), the Borrower and the Servicer shall, and shall cause the other Service Providers to, deliver or cause to be delivered to the purchaser or purchasers at such sale on the date thereof, or within a reasonable time thereafter if it shall be impracticable to make immediate delivery, all of the Borrower Collateral sold on such date, but in any event full title and right of possession to such property shall vest in such purchaser or purchasers upon the completion of such sale. Nevertheless, if so requested by the Lender Agent or by any such Lender, the Borrower shall confirm any such sale or transfer by executing and delivering to such Lender all proper instruments of conveyance and transfer and releases as may be designated in any such request.
(d) At any sale under Section 9.01(b), each of the Lenders, the Lender Agent, the Operating Agent, the Collateral Agent or any other Edison Secured Party may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such balance property without further accountability therefor.
(e) The Lender Agent may exercise, at the sole cost and expense of the Borrower, any and all rights and remedies of the Borrower under or in connection with the Borrower Pledged Agreements or the other Borrower Collateral, including any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provisions of, the BorrowersBorrower Pledged Agreements.
Appears in 1 contract
Samples: Revolving Loan Agreement (Pilgrim America Prime Rate Trust)
Actions upon Event of Default. Upon request (a) In addition to its rights and remedies provided hereunder, whenever any Event of Default has occurred and is continuing, the Agent shall have all rights and remedies of a secured party upon default under the U.C.C. (whether or not the U.C.C. applies to the affected Pledged Collateral) or other applicable law, and also may, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sales, at any one of the Agent's offices or elsewhere, for cash or credit or for future delivery, without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable. Each Pledgor agrees that, to the extent notice of sale shall be required by applicable law, at least ten (10) days' notice to each Pledgor of the Lender during time and place of any public sale or the existence time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Without limitation of the above, the Agent may, whenever any Event of Default has occurred and is continuing, without prior notice to any Pledgor, take all or any of the following actions:
(i) vote any or all of the Pledged Shares (whether or not the same shall have been transferred into its name or the name of its nominee or nominees) for any lawful purpose, give all consents, waivers and ratifications in respect of the Pledged Shares, and otherwise act with respect thereto as though it were the outright owner thereof;
(ii) transfer all or any part of the Pledged Collateral into the name of the Agent or its nominee, with or without disclosing that such Pledged Collateral is subject to the lien hereunder;
(iii) enforce collection of any of the Pledged Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) endorse any checks, drafts or other writings in the name of any Pledgor to allow collection of the Pledged Collateral pledged by such Pledgor hereunder;
(v) take control of any products or proceeds of the Pledged Collateral;
(vi) execute (in the name, place and stead of any Pledgor) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Pledged Collateral; and
(vii) generally, do all such other acts and things as may be considered incidental or conducive to any of the matters or powers mentioned in the foregoing provisions of this paragraph (a) and which the Agent may or can do lawfully and to use the name of any Pledgor for such purposes and in any proceedings arising therefrom.
(b) If the Agent shall determine to exercise its right to sell any or all of the Pledged Shares pursuant to this Section 6.1, and if in the opinion of counsel for the Agent it is necessary, or if in the reasonable opinion of the Agent it is advisable, to have the Pledged Shares, or that portion thereof to be sold, registered under the provisions of the Securities Act of 1933, as amended (the "Securities Act"), the Pledgors agree to cause the Pledged Share Issuer to execute and deliver, and cause the directors and officers of the Pledged Share Issuer to execute and deliver, without any cost or expense to any of the Secured Parties, all such Instruments, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Agent, advisable to register such Pledged Shares under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for a period of nine (9) months from the date such registration statement became effective, and to make all amendments and supplements thereto or to the related prospectus or both that, in the reasonable opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the SEC applicable thereto. The Pledgors agree to cause such Pledged Share Issuer to comply with the provisions of the securities or "Blue Sky" laws of any jurisdiction which the Agent shall designate and to cause such to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act.
(c) Each Pledgor recognizes that the Agent may be unable to effect a public sale of the Pledged Shares by reason of certain prohibitions contained in the Securities Act, and other applicable laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers. Each Pledgor agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. The Agent shall be under no obligation to delay a private sale of any of the Pledged Shares for the period of time necessary to permit the applicable Pledged Share Issuer to register such Pledged Shares for public sale under the Securities Act, or other Applicable Laws, even if such Pledged Share Issuer would agree to do so and even if a registration statement for the purpose of registering such pledged shares shall have been filed under the Securities Act
(d) So long as an Event of DefaultDefault has occurred and is continuing, each Borrower will forthwithPledgor shall, upon receiptthe request of the Agent, transmit take or cause to be taken (or, if such Pledgor does not have the legal right to take such action or cause such action to be taken, such Pledgor will use its best efforts to cause such action to be taken), in good faith and promptly, and without any cost or expense to any of the Secured Parties, all such action as may be necessary or desirable, as soon as reasonably practicable, to sell or to effect the sale of the Pledged Shares of any Pledged Share Issuer pledged by such Pledgor hereunder. Such action shall include but shall not be limited to the following:
(i) such Pledgor shall prepare and deliver to the LenderAgent as soon as practicable, but in any event not later than thirty (30) days after request by the Agent, a written plan for the sale or other disposition of such Pledged Shares, which plan shall be reasonably satisfactory in form and substance to the Majority Banks;
(ii) such Pledgor shall and shall cause any Pledged Share Issuer to retain such investment banking firms, accountants, appraisers and other consultants who are reasonably acceptable to the Majority Banks to make recommendations with respect to and to assist in such sale, and such Pledgor shall cause such investment banking firms, accountants, appraisers and other consultants to furnish the Agent with all such financial reports, appraisals, opinions and other documents which the Agent shall reasonably request; and
(iii) if (and on each occasion that) such Pledgor or any Pledged Share Issuer shall receive from any Person an offer to purchase any such Pledged Shares, such Pledgor shall and shall cause the applicable Pledged Share Issuer to furnish or cause to be furnished to the Agent a written notice setting forth the full particulars thereof, including (A) the name and address of such Person, and (B) the terms of such offer to purchase. Each purchaser of any of the Pledged Shares, and the agreement entered into by such purchaser in connection with such purchase and sale, shall be subject to the prior written agreement, consent or approval of the Majority Banks. Each Pledgor shall and shall cause each of its Subsidiaries to deliver forthwith to the Agent in the form received, all cash, checks, drafts and other instruments or writings except for the addition of any endorsement or assignment necessary to effect transfer of all rights therein to the Agent, any payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at Pledgor or any time in full or partial payment or otherwise as Proceeds of its Subsidiaries on account of any such purchase and sale of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may Pledged Shares. Until so delivered, each such payment shall be so received by such Borrower during held in trust for the existence of an Event of Default will Agent and shall not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply all Pledgor or any of the then balance, representing collected funds, in its Subsidiaries.
(e) The Agent may buy any Cash Collateral Account, toward payment part or all of the ObligationsPledged Collateral at any public sale and if any part or all of the Pledged Collateral is of a type customarily sold in a recognized market, whether or not then dueis of the type which is the subject of widely distributed price standard price quotations, in such order of application as the Lender Agent may determinebuy at private sale, and the Lender may, from time to time, in its discretion, release all or may make payments thereof by any of such balance to the Borrowersmeans.
Appears in 1 contract
Actions upon Event of Default. Upon request (a) In addition to its rights and remedies provided hereunder, whenever any Event of Default has occurred and is continuing, the Agent shall have all rights and remedies of a secured party upon default under the U.C.C. (whether or not the U.C.C. applies to the affected Pledged Collateral) or other applicable law, and also may, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sales, at any one of the Agent's offices or elsewhere, for cash or credit or for future delivery, without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable. Each Pledgor agrees that, to the extent notice of sale shall be required by applicable law, at least ten (10) business days' notice to each Pledgor of the Lender during time and place of any public sale or the existence time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Without limitation of the above, the Agent may, whenever any Event of Default is continuing, without prior notice to any Pledgor, take all or any of the following actions:
(i) vote any or all of the Pledged Shares (whether or not the same shall have been transferred into its name or the name of its nominee or nominees) for any lawful purpose, give all consents, waivers and ratifications in respect of the Pledged Shares, and otherwise act with respect thereto as though it were the outright owner thereof;
(ii) transfer all or any part of the Pledged Collateral into the name of the Agent or its nominee, with or without disclosing that such Pledged Collateral is subject to the lien hereunder;
(iii) enforce collection of any of the Pledged Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) endorse any checks, drafts or other writings in the name of any Pledgor to allow collection of the Pledged Collateral pledged by such pledgor hereunder;
(v) take control of any products or proceeds of the Pledged Collateral;
(vi) execute (in the name, place and stead of any Pledgor) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Pledged Collateral; and
(vii) generally, do all such other acts and things as may be considered incidental or conducive to any of the matters or powers mentioned in the foregoing provisions of this paragraph (a) and which the Agent may or can do lawfully and to use the name of any Pledgor for such purposes and in any proceedings arising therefrom.
(b) If the Agent shall determine to exercise its right to sell any or all of the Pledged Shares pursuant to this section 6.1, and if ----------- in the opinion of counsel for the Agent it is necessary, or if in the reasonable opinion of the Agent it is advisable, to have the Pledged Shares, or that portion thereof to be sold, registered under the provisions of the Securities Act of 1933, as amended (the "Securities Act"), the -------------- Pledgors agree to cause the Pledged Share Issuer to execute and deliver, and cause the directors and officers of the Pledged Share Issuer to execute and deliver, without any cost or expense to any of the Secured Parties, all such Instruments, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Agent, advisable to register such Pledged Shares under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for a period of nine (9) months (if the Company or the Pledgor, as applicable to use Form S-3 under the Securities Act) or 120 days if not eligible to use such form from the date such registration statement became effective (or until all of the securities registered thereby have been sold), and to make all amendments thereto or to the related prospectus or both that, in the reasonable opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the SEC applicable thereto and substantially in the form of the Registration Rights Agreement executed in connection with the Loan Agreement. The Pledgors agree to cause such Pledged Share Issuer to comply with the provisions of the securities or "Blue Sky" laws of any jurisdiction which the Agent shall designate and to cause such to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of section 11(a) of the Securities Act.
(c) Each Pledgor recognizes that the Agent may be unable to effect a public sale of the Pledged Shares by reason of certain prohibitions contained in the Securities Act, and other applicable laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers. Each Pledgor agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. The Agent shall be under no obligation to delay a sale of any of the Pledged Shares for the period of time necessary to permit the applicable Pledged Share Issuer to register such Pledged Shares for public sale under the Securities Act, or other Applicable Laws, even if such Pledged Share Issuer would agree to do so.
(d) So long as an Event of DefaultDefault has occurred and is continuing, each Borrower will forthwithPledgor shall, upon receiptthe request of the Agent, transmit take or cause to be taken (or, if such Pledgor does not have the legal right to take such action or cause such action to be taken, such Pledgor will use its best efforts to cause such action to be taken), in good faith and promptly, and without any cost or expense to any of the Secured Parties, all such action as may be necessary or desirable, as soon as reasonably practicable, to sell or to effect the sale of the Pledged Shares of any Pledged Share Issuer pledged by such pledgor hereunder. Such action shall include but shall not be limited to the following:
(i) such Pledgor shall prepare and deliver to the LenderAgent as soon as practicable, but in any event not later than thirty (30) days after request by the Agent, a written plan for the sale or other disposition of such Pledged Shares, which plan shall be reasonably satisfactory in form and substance to the Majority Lenders;
(ii) such Pledgor shall and shall cause any Pledged Share Issuer to retain such investment banking firms, accountants, appraisers and other consultants who are reasonably acceptable to the Majority Lenders to make recommendations with respect to and to assist in such sale, and such Pledgor shall cause such investment banking firms, accountants, appraisers and other consultants to furnish the Agent with all such financial reports, appraisals, opinions and other documents which the Agent shall reasonably request; and
(iii) if (and on each occasion that) such Pledgor or any Pledged Share Issuer shall receive from any Person an offer to purchase any such Pledged Shares, such Pledgor shall and shall cause the applicable Pledged Share Issuer to furnish or cause to be furnished to the Agent a written notice setting forth the full particulars thereof, including (A) the name and address of such Person, and (B) the terms of such offer to purchase. Each purchaser of any of the Pledged Shares, and the agreement entered into by such purchaser in connection with such purchase and sale, shall be subject to the prior written agreement, consent or approval of the Majority Lenders. Each Pledgor shall and shall cause each of its Subsidiaries to deliver forthwith to the Agent in the form received, all cash, checks, drafts and other instruments or writings except for the addition of any endorsement or assignment necessary to effect transfer of all rights therein to the Agent, any payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at Pledgor or any time in full or partial payment or otherwise as Proceeds of its Subsidiaries on account of any such purchase and sale of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may Pledged Shares. Until so delivered, each such payment shall be so received by such Borrower during held in trust for the existence of an Event of Default will Agent and shall not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (and the Lender shall have the option, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Election, no Borrower shall have any right to withdraw any funds or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply all Pledgor or any of the then balance, representing collected funds, in its Subsidiaries.
(e) The Agent or any Cash Collateral Account, toward payment Lender may buy any part or all of the ObligationsPledged Collateral at any public sale and if any part or all of the Pledged Collateral is of a type customarily sold in a recognized market, whether or not then dueis of the type which is the subject of widely distributed price standard price quotations, in such order of application as the Agent or any Lender may determinebuy at private sale, and the Lender may, from time to time, in its discretion, release all or may make payments thereof by any of such balance to the Borrowersmeans.
Appears in 1 contract
Samples: Pledge Agreement (Pacific Aerospace & Electronics Inc)
Actions upon Event of Default. Upon request by the Lender occurrence and during the existence continuation of an a Event of Default, each of the Borrower will forthwithand the Servicer shall, upon receiptrequest, transmit (i) deliver and deliver turn over to the LenderAdministrative Agent or to its representatives, in or at the form receivedoption of the Administrative Agent or the Insurer, provide the Administrative Agent, the Insurer or any of their respective representatives with access to, at any time, all cashof the Servicer's and the Borrower's facilities, checkspersonnel, drafts books and other instruments or writings for records pertaining to the payment Collateral, including all Records, (ii) allow the Administrative Agent to have access during normal business hours to the premises of money the Servicer and/or the Borrower where such books, records and Records are maintained, and (properly endorsediii) assist the Administrative Agent in using such premises, where requiredthe equipment thereon and any personnel of the Servicer that the Administrative Agent may lawfully employ to administer, so that such items may be collected by service and collect the Lender) which may be received by such Borrower at Pledged Loans. At any time in full or partial payment or otherwise as Proceeds of any of following the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower occurrence and during the existence continuation of an Event of Default will not be commingled with any other or an event of its funds or propertythe type described in the definition of "Event of Bankruptcy" which, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions lapse of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”)time, all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of could become an Event of Default, the Lender shall also Administrative Agent may have the right to require Collection Account transferred into the Borrowers to provide name of the Lender with Administrative Agent and/or assume exclusive control of the Collection Account , and may take such actions to effect such transfer or assumption as it may determine to be necessary or appropriate (including, without limitation, delivering the notices attached to the "Control Agreement" referred to in the Servicing Agreement). Each of the Borrower and the Seller hereby agrees to take such action that the Administrative Agent may reasonably request to effect or further evidence such transfer or assumption. If any Event of Default shall have occurred and be continuing and the Administrative Agent shall have declared the Termination Date to have occurred or the Termination Date shall have been deemed to have occurred pursuant to Section 10.1, then the Administrative Agent may exercise in respect of the Collateral, in addition to any and all other rights and remedies otherwise available to it, all of their Lockboxes the rights and remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive), and, in addition, may take the Lender shall have the optionfollowing remedial actions:
(a) The Administrative Agent may, at its discretion to apply any items of payment received therein without notice to the Obligations). Following the Control Election, no Borrower shall have except as required by law and at any right to withdraw any funds time or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretioncharge, set-off and shall upon request of the Borrower Representative made not more than once in any week, otherwise apply all or any part of the then balanceBorrower Secured Obligations against amounts payable to the Borrower from the Distribution Account, representing collected funds, in any the Collection Account or the Cash Collateral Account.
(b) Consistent with the rights and remedies of a secured party under the UCC (and except as otherwise required by the UCC), toward payment the Administrative Agent may, without notice except as specified below, solicit and accept bids for and sell the Collateral or any part of the ObligationsCollateral in one or more parcels at public or private sale, whether at any exchange, broker's board or not then dueat any of the Lender's, in Custodian's or Administrative Agent's offices or elsewhere, for cash, on credit or for future delivery, and upon such order of application other terms as the Lender Administrative Agent may determinedeem commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, ten (10) or more Business Days' notice to the Borrower of the time and place of any public sale or the Lender may, time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to timetime by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in its discretionand to the Collateral so sold, release and shall be a perpetual bar, both at law and in equity, against the Borrower, any Transaction Party, any Person claiming the Collateral sold through the Borrower, any Transaction Party and their respective successors or assigns.
(c) Upon the completion of any sale under Section 11.1(b), the Borrower or the Servicer will deliver or cause to be delivered all of the Collateral sold to the purchaser or purchasers at such sale on the date of sale, or within a reasonable time thereafter if it shall be impractical to make immediate delivery, but in any event full title and right of possession to such property shall pass to such purchaser or purchasers forthwith upon the completion of such sale. Nevertheless, if so requested by the Administrative Agent or by any purchaser, the Borrower shall confirm any such sale or transfer by executing and delivering to such purchaser all proper instruments of conveyance and transfer and releases as may be designated in any such request.
(d) At any sale under Section 11.1(b), the Administrative Agent or any other Secured Party may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such balance property without further accountability therefor. Any holder of the Note purchasing property at a sale under Section 11.1(b) may set off the purchase price of such property against amounts outstanding under the Note in full payment of such purchase price.
(e) At the Administrative Agent's request and at the Borrower's expense, the Servicer shall (and if the Servicer shall fail to do so within two Business Days, the Administrative Agent may) notify each Obligor on the Loans of the Administrative Agent's security interest and direct that payments be made directly to the BorrowersAdministrative Agent or its designee.
(f) The Administrative Agent may exercise at the Borrower's expense any and all rights and remedies of the Borrower under or in connection with the Borrower Assigned Agreements or the other Collateral, including any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provisions of, the Borrower Assigned Agreements.
(g) Notwithstanding the foregoing, the Administrative Agent may not direct the sale or other liquidation of the Collateral unless either (i) the Insurer consents to such sale or liquidation or (ii) the Proceeds of such sale or liquidation, when applied in accordance with the Priority of Payments, will be sufficient to pay in full (x) the "Insured Interest Amount" (as defined in the Insurance Policy) accrued and to accrue through the next Payment Date, (y) the Guaranteed Principal Amount and (z) the aggregate amount of unreimbursed payments made by the Insurer under the Insurance Policy, together with interest thereon at the rate specified in the Insurance Agreement and all other Borrower Secured Obligations owed to the Insurer.
Appears in 1 contract
Samples: Loan and Security Agreement (CNL American Properties Fund Inc)
Actions upon Event of Default. Upon request by the Lender during the existence of an Event of Default, each Borrower will forthwith, upon receipt, transmit and deliver to the Lender, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Lender) which may be received by such Borrower at If any time in full or partial payment or otherwise as Proceeds of any of the Collateral. Except as the Lender may otherwise consent in writing, any such items which may be so received by such Borrower during the existence of an Event of Default will not shall have occurred and be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Lender until delivery is made to the Lender. Each Borrower will comply with the terms and conditions of any consent given by the Lender pursuant to the foregoing sentence. Upon written notice by the Lender to the Borrower Representative during the existence of an Event of Default (a “Control Election”), all items or amounts which are delivered by each Borrower to the Lender on account of partial or full payment or otherwise as Proceeds of any of the Collateral shall be deposited to the credit of a Deposit Account (a “Cash Collateral Account”) of such Borrower maintained by the Lender, as security for payment of the Obligations. During the existence of an Event of Default, the Lender shall also have the right to require the Borrowers to provide the Lender with exclusive control of all of their Lockboxes (continuing and the Lender shall have declared the optionMaturity Date to have occurred or the Maturity Date shall have been deemed to have occurred pursuant to Section 9.1, then the Lender may exercise in respect of the Collateral, in addition to any and all other rights and remedies otherwise available to it, all of the rights and remedies of a secured party upon default under the UCC (such right and remedies to be cumulative and nonexclusive) and, in addition, may take the following remedial actions:
(a) The Lender may solicit and accept bids for and sell the Collateral or any part of the Collateral in one or more parcels at public or private sale, at its discretion to apply any items of payment received therein to the Obligations). Following the Control Electionexchange, no Borrower shall have any right to withdraw any funds broker's board or checks or other items of payment deposited in any Cash Collateral Account or any Lockbox. The Lender may, from time to time, in its discretion, and shall upon request of the Borrower Representative made not more than once in any week, apply all or at any of the then balanceLender's offices or elsewhere, representing collected fundsfor cash, in any Cash Collateral Accounton credit or for future delivery, toward payment of the Obligations, whether or not then due, in and upon such order of application other terms as the Lender may determine, deem commercially reasonable. The Lender agrees to give at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Lender may, shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Lender may adjourn any public or private sale from time to timetime by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in its discretionand to the Collateral so sold, release and shall be a perpetual bar, both at law and in equity, against the Borrower, any Person claiming the Collateral sold through the Borrower, and their respective successors or assigns.
(b) Upon the completion of any sale under Section 10.1(a), the Borrower will deliver or cause to be delivered all of the Collateral sold to the purchaser or purchasers at such sale on the date of sale, or within a reasonable time thereafter if it shall be impractical to make immediate delivery, but in any event full title and right of possession to such property shall pass to such purchaser or purchasers forthwith upon the completion of such balance sale. Nevertheless, if so requested by the Lender or by any purchaser, the Borrower shall confirm any such sale or transfer by executing and delivering to such purchaser all proper instruments of conveyance and transfer and releases as may be designated in any such request.
(c) At any public sale under Section 10.1(a), the Lender may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such property without further accountability therefor. Any purchaser at any sale under Section 10.1(a) shall be entitled, for the purpose of making payment for the property purchased, to use the Note in order that there may be credited thereon the sums payable out of the net proceeds of such sale to any such holder, and thereupon such purchaser shall be credited on account of such purchase price with the portion of such net proceeds that shall be applicable to the Borrowerspayment of, and shall have been credited upon, the Note so used.
(d) The Lender may exercise at the Borrower's expense any and all rights and remedies of the Borrower under or in connection with the Borrower Assigned Agreements or the other Collateral, including any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provisions of, any Borrower Assigned Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Unison Healthcare Corp)
