Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the Co-Collateral Agents, on behalf of the Credit Parties, may (and at the direction of the Required Lenders shall) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the Co-Collateral Agents, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may (and at the direction of the Required Lenders shall) in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Co-Collateral Agent or any Credit Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, stay, valuation or appraisal on the part of any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 7 contracts

Samples: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable law, each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. To the extent permitted by applicable law, and so long as an Event of Default is continuing, the Administrative Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other ~~amount~~ amounts required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by ~~them~~ any Secured Party of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Administrative Agent or its designee with ~~respect~~ such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 6 contracts

Samples: Credit Agreement (Babcock & Wilcox Co), Pledge and Security Agreement (Babcock & Wilcox Co), Pledge and Security Agreement (Babcock & Wilcox Co)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit Parties~~Guaranteed Creditors, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this ~~Agreement~~ Agreement, the other Loan Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~law or otherwise available at law or equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Guaranteed Creditor or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Any Guaranteed Creditor shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability . If applicable to any ~~Grantor therefor. Each Grantor~~ particular item of Collateral, each Pledgor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such ~~Grantor~~Pledgor’s premises or elsewhere. Any such sale or transfer by the Administrative Agent either to itself or to any other Person shall be absolutely free from any claim of right by Pledgor, including any equity or right of redemption, stay or appraisal which Pledgor has or may have under any rule of law, regulation or statute now existing or hereafter adopted (and such Pledgor hereby waives any rights it may have in respect thereof). Upon any such sale or transfer, the Administrative Agent shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.01, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the ~~other Credit Parties~~ Guaranteed Creditors hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in accordance with Section 10.02(c) of the ~~order set forth in Section 6.4~~Credit Agreement, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section ~~9-615(a)(3)~~ 9.615 of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any ~~Grantor~~Pledgor. To the extent permitted by applicable law, each ~~Grantor~~ Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any ~~other Credit Party~~ Guaranteed Creditor arising out of the exercise by them of any rights ~~hereunder~~hereunder except to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Guaranteed Creditor or their respective agents. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event of Default shall occur and be continuing, with respect~~ In the event that the Administrative Agent elects not to ~~any Collateral consisting of Inventory~~sell the Collateral, the ~~Co-~~Administrative Agent retains its rights to dispose of or utilize the Collateral ~~Agents may conduct one~~ or ~~more going out of business sales~~any part or parts thereof in any manner authorized or permitted by law or in equity, in and to apply the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property proceeds of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share~~ same towards payment of the ~~costs~~ Obligations. Each and ~~expenses incurred in their disposition) shall be the sole property~~ every method of disposition of the ~~Co-~~Collateral ~~Agents or such agent or contractor and neither any Grantor nor any Person claiming under or~~ described in ~~right of any Grantor~~ this Agreement shall ~~have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor~~constitute disposition in a commercially reasonable manner. (c) ~~If an Event of Default shall occur and be continuing, with respect~~ The Administrative Agent may appoint any Person as agent to perform any act or acts necessary or incident to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle sale or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage transfer of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesCollateral. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 5 contracts

Samples: Guaranty and Pledge Agreement (Linn Energy, LLC), Guaranty and Pledge Agreement (Teton Energy Corp), Guaranty and Pledge Agreement (Teton Energy Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of itself, the ~~Credit~~ Administrative Agent and the other Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, to the ~~Co-~~maximum extent permitted under applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below or notices otherwise required by the Credit Agreement) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived, to the maximum extent permitted under applicable law unless otherwise provided in the Credit Agreement), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to pre-existing rights and licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Administrative Agent, the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold~~ The Administrative Agent, the ~~property sold absolutely, free from any claim or right on the part of any Grantor. The Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, ~~stay, valuation~~ stay or appraisal ~~on the part of~~ in any Grantor, which ~~right~~ rights or ~~equity is~~ equities are hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable costs and expenses of every kind actually incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Administrative Agent, the Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.6, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To Notwithstanding the ~~extent permitted by applicable law~~foregoing, ~~each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of~~ the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall ~~be obligated~~ give each applicable Grantor not less than 10 days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale ~~or other disposition~~ of ~~any Collateral if it~~ Collateral. Such notice, in the case of a public sale, shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at state the time and place ~~fixed~~ for ~~sale, and~~ such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business salesand, in the ~~Co-Collateral Agents’ own right~~ case of a sale at a broker’s board or ~~by one~~ on a securities exchange, shall state the board or ~~more agents~~ exchange at which such sale is to be made and ~~contractors. Such sale(s) may be conducted upon any premises owned, leased~~the day on which the Collateral, or ~~occupied by any Grantor. The Co-Collateral Agents and any~~ portion thereof, will first be offered for sale at such ~~agent~~ board or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor)exchange. Any ~~amounts realized from the sale of such goods which constitute augmentations~~ remedies provided in this Section 6.7 shall be subject to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any GrantorABL Intercreditor Agreement. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Term Loan Guarantee and Collateral Agreement (Revlon Inc /De/), Asset Based Revolving Credit Agreement (Revlon Inc /De/), Abl Guarantee and Collateral Agreement (Revlon Inc /De/)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit Parties~~Lenders, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Credit Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give ~~option or~~ options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery ~~without~~ with assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Agent or any ~~other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Credit Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other . Each Credit Party ~~may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor~~ further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Credit Party’s premises or elsewhere. The ~~Co-Collateral Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~4.10, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Agent and the ~~other Credit Parties~~ Lenders hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~2.5(b), and only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation, Section 9-615(a)(3) of the New York UCC,~~ need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any ~~Grantor~~Credit Party. To the extent permitted by applicable law, each ~~Grantor~~ Credit Party waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Agent or any ~~other Credit Party~~ Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.), Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.), Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code of the United States, the Collateral Agent, as agent for and representative of the Secured Parties in accordance with the Credit Agreement, shall be entitled to credit bid and use and apply the Obligations (or any ~~claim then due and payable from any Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Collateral Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of each Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Collateral ~~Agents or~~ Agent arising by reason of the fact that the price at which any Collateral may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall ~~apply~~ have the ~~net proceeds~~ right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Collateral Agent shall have no obligation to marshal any of ~~any action taken by it pursuant to this Section 6.5, after deducting~~ the Collateral. (b) The Collateral Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable and documented attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied in accordance with Section 5.2. If the ~~payment in whole or in part~~ Collateral Agent sells any of the ~~Obligations~~Collateral upon credit, in the ~~order set forth in Section 6.4, and~~ relevant Grantor will be credited only ~~after such application and after the payment~~ with payments actually made by the ~~Co-~~purchaser and received by the Collateral ~~Agents of any other amount required by any provision of law~~Agent. In the event the purchaser fails to pay for the Collateral, ~~including, without limitation, Section 9-615(a)(3)~~ the Collateral Agent may resell the Collateral and the relevant Grantor shall be credited with proceeds of the ~~New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor~~sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Pledge and Security Agreement (Alpha Metallurgical Resources, Inc.), Pledge and Security Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC or~~ Code and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, subject to the Intercreditor Agreements, to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~Subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~Subsection 6.5, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Credit Agreement (Nci Building Systems Inc), Guarantee and Collateral Agreement (Nci Building Systems Inc), Guarantee and Collateral Agreement (Emergency Medical Services CORP)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur~~ Default, and ~~be continuing~~subject always to any prior rights of the Senior Agent and the Lenders under the Senior Guaranty and Pledge Agreement and the Intercreditor and Subordination Agreement, the ~~Co-Collateral Agents~~Subordinated Noteholder Representative, on behalf of the ~~Credit Parties~~Guaranteed Creditors, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this ~~Agreement~~ Agreement, the other Transaction Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~law or otherwise available at law or equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Subordinated Noteholder Representative, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Guaranteed Creditor or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Any Guaranteed Creditor shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability . If applicable to any ~~Grantor therefor. Each Grantor~~ particular item of Collateral, each Pledgor further agrees, at the ~~Co-Collateral Agents’~~ Subordinated Noteholder Representative’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Subordinated Noteholder Representative at places which the ~~Co-Collateral Agents~~ Subordinated Noteholder Representative shall reasonably select, whether at such ~~Grantor~~Pledgor’s premises or elsewhere. Any such sale or transfer by the Subordinated Noteholder Representative either to itself or to any other Person shall be absolutely free from any claim of right by Pledgor, including any equity or right of redemption, stay or appraisal which Pledgor has or may have under any rule of law, regulation or statute now existing or hereafter adopted (and such Pledgor hereby waives any rights it may have in respect thereof). Upon any such sale or transfer, the Subordinated Noteholder Representative shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The ~~Co-Collateral Agents~~ Subordinated Noteholder Representative shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.01, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Subordinated Noteholder Representative and the ~~other Credit Parties~~ Guaranteed Creditors hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, ~~in the order set forth in Section 6.4,~~ and only after such application and after the payment by the ~~Co-Collateral Agents~~ Subordinated Noteholder Representative of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3)~~ 615 of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Subordinated Noteholder Representative account for the surplus, if any, to any ~~Grantor~~Pledgor. To the extent permitted by applicable law, each ~~Grantor~~ Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent~~ the Subordinated Noteholder Representative or any ~~other Credit Party~~ Guaranteed Creditor arising out of the exercise by them of any rights ~~hereunder~~hereunder except to the extent caused by the gross negligence or willful misconduct of the Subordinated Noteholder Representative or such Guaranteed Creditor or their respective agents. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event of Default shall occur and be continuing, with respect~~ In the event that the Subordinated Noteholder Representative elects not to ~~any Collateral consisting of Inventory~~sell the Collateral, the ~~Co-~~Subordinated Noteholder Representative retains its rights to dispose of or utilize the Collateral ~~Agents may conduct one~~ or ~~more going out of business sales~~any part or parts thereof in any manner authorized or permitted by law or in equity, in and to apply the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property proceeds of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share~~ same towards payment of the ~~costs~~ Obligations. Each and ~~expenses incurred in their disposition) shall be the sole property~~ every method of disposition of the ~~Co-~~Collateral ~~Agents or such agent or contractor and neither any Grantor nor any Person claiming under or~~ described in ~~right of any Grantor~~ this Agreement shall ~~have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor~~constitute disposition in a commercially reasonable manner. (c) ~~If an Event of Default shall occur and be continuing, with respect~~ The Subordinated Noteholder Representative may appoint any Person as agent to perform any act or acts necessary or incident to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle sale or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage transfer of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesCollateral. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Subordinated Guaranty and Pledge Agreement (Teton Energy Corp), Subordinated Guaranty and Pledge Agreement (Teton Energy Corp), Subordinated Guaranty and Pledge Agreement (Teton Energy Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to such Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable law, each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. To the extent permitted by applicable law, and so long as an Event of Default is continuing, the Administrative Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other ~~amount~~ amounts required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by ~~them~~ any Secured Party of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Administrative Agent or its designee with ~~respect~~ such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Co)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of itself, the ~~Credit Parties~~Administrative Agent and the Lenders, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below or notices otherwise provided in the Loan Documents) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~waived~~waived unless otherwise provided in the Loan Documents), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents~~ Any Agent or any ~~other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, if an Event of Default shall have occurred and be continuing, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable out-of-pocket costs and expenses of every kind actually incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the ~~other Credit Parties~~ Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Collateral Agent may elect, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: First Lien Guarantee and Collateral Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Guarantee and Collateral Agreement (PGA Holdings, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of itself, the ~~Credit~~ Administrative Agent and the other Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, to the ~~Co-~~maximum extent permitted under applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below or notices otherwise required by the Credit Agreement) to or upon ~~any~~ the Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived, to the maximum extent permitted under applicable law unless otherwise provided in the Credit Agreement), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to pre-existing rights and licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Administrative Agent, the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold~~ The Administrative Agent, the ~~property sold absolutely, free from any claim or right on the part of any Grantor. The Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, ~~stay, valuation~~ stay or appraisal on in the ~~part of any~~ Grantor, which ~~right~~ rights or ~~equity is~~ equities are hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. ~~Each~~ The Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at ~~such~~ the Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable costs and expenses of every kind actually incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Administrative Agent, the Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.6, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any~~ the Grantor. To Notwithstanding the ~~extent permitted by applicable law~~foregoing, ~~each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of~~ the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall ~~be obligated~~ give the Grantor not less than 10 days’ written notice (which the Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale ~~or other disposition~~ of ~~any Collateral if it~~ Collateral. Such notice, in the case of a public sale, shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at state the time and place ~~fixed~~ for ~~sale, and~~ such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business salesand, in the ~~Co-Collateral Agents’ own right~~ case of a sale at a broker’s board or ~~by one~~ on a securities exchange, shall state the board or ~~more agents~~ exchange at which such sale is to be made and ~~contractors. Such sale(s) may be conducted upon any premises owned, leased~~the day on which the Collateral, or ~~occupied by any Grantor. The Co-Collateral Agents and any~~ portion thereof, will first be offered for sale at such ~~agent~~ board or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor)exchange. Any ~~amounts realized from the sale of such goods which constitute augmentations~~ remedies provided in this Section 6.7 shall be subject to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any GrantorABL Intercreditor Agreement. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 4 contracts

Samples: Holdings Term Loan Guarantee and Pledge Agreement (Revlon Inc /De/), Asset Based Revolving Credit Agreement (Revlon Inc /De/), Holdings Term Loan Guarantee and Pledge Agreement (Revlon Inc /De/)

Code and Other Remedies. (a) If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below, by the Credit Agreement, this Agreement or any other Loan Document) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall, to the extent permitted by law, 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 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. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s reasonable written request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere upon the occurrence and during the continuance of any Event of Default. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be paid in accordance with the Credit Agreement, to the payment in whole or in part of the ~~Obligations,~~ Secured Obligations in ~~the order set forth in~~ accordance with Section ~~6.4,~~ 6.5 and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. (c) Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Equity Interests or the Pledged Debt Securities, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. If Each Grantor acknowledges and agrees that any ~~notice of a proposed~~ such private sale or may result in prices and other ~~disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper~~ terms less favorable than if ~~given at least 10 days before~~ such sale ~~or other disposition. No Co-Collateral Agent shall be obligated to make~~ were a public sale and, notwithstanding such circumstances, agrees that any ~~sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of~~ such ~~Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or~~ private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been ~~reduced as~~ made in a ~~result~~ commercially reasonable manner. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests or the Pledged Debt Securities for the period of time necessary to permit the Issuer thereof ~~unless and until payment is finally received thereon by~~ to register such securities for public sale under the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leasedSecurities Act, or ~~occupied by any Grantor. The Co-Collateral Agents and any~~ under applicable state securities laws, even if such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations Issuer would agree to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesdo so. (d) ~~If an Event~~ Each Grantor agrees to use its commercially reasonable efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of ~~Default shall occur and be continuing, with~~ all or ~~without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use~~ any ~~premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any~~ portion of the ~~Collateral from any such premises upon~~ Pledged Equity Interests or the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises Pledged Debt Securities pursuant to this Section ~~6.5, nor for~~ 6.6 valid and binding and in compliance with any ~~charge (such as wages for the Grantors’ employees~~ and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all ~~Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by~~ other applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Guarantee and Collateral Agreement (Ollie's Bargain Outlet Holdings, Inc.), Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.), Guarantee and Collateral Agreement (Ollie's Bargain Outlet Holdings, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to the terms of any documentation governing any Special Purpose Financing), to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Guarantee and Collateral Agreement (Great North Imports, LLC), Guarantee and Collateral Agreement (Servicemaster Co), Guarantee and Collateral Agreement (HSI IP, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of itself, the ~~Credit~~ Administrative Agent and the other Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~maximum extent permitted under applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any ~~notice required by law referred to below~~notices otherwise provided in the Loan Documents) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived, to the maximum extent permitted under applicable law, unless otherwise provided in the Loan Documents), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to pre-existing rights and licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Administrative Agent, the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold~~ The Administrative Agent, the ~~property sold absolutely, free from any claim or right on the part of any Grantor. The Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, ~~stay, valuation~~ stay or appraisal ~~on the part of~~ in any Grantor, which ~~right~~ rights or ~~equity is~~ equities are hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.8, after deducting all reasonable costs and expenses of every kind actually incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Administrative Agent, the Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.7, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Guarantee and Collateral Agreement (Covetrus, Inc.), Credit Agreement (Covetrus, Inc.), Guarantee and Collateral Agreement (Booz Allen Hamilton Holding Corp)

Code and Other Remedies. ~~(a)~~ If an Ambac Event of Default shall occur and be continuing, the ~~Co-~~Note Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may (~~and at the direction of the Required Lenders shall~~but shall not be obligated to) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code (whether or not the Code applies to the affected Collateral) and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law and solely during the continuance of an Ambac Event of Default, the Note Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Company or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances (but shall not be obligated to), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Note Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Note Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Company, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Note Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.3, after deducting all reasonable and documented out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Note Collateral ~~Agents and the other Credit Parties~~ Agent hereunder, ~~including, without limitation,~~ including reasonable and documented attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the Issuer then due and owing, in the order ~~set forth~~ of priority specified in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor5.2. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Company waives all claims, damages and demands it may acquire against ~~any Co-~~the Note Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Note Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Indenture (Ambac Financial Group Inc), Pledge Agreement (Ambac Financial Group Inc), Rehabilitation Exit Support Agreement (Ambac Financial Group Inc)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, upon the ~~Co-~~occurrence and during the continuance of an Event of Default, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and ~~released~~released to the extent permitted by applicable law. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made may constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s reasonable request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06, after deducting all reasonable ~~costs and~~ documented out-of-pocket expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder~~. If~~ . (c) In the event of any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any ~~Collateral if it shall determine not to do so, regardless~~ of the ~~fact that notice~~ Intellectual Property Collateral, the goodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with records, documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or ~~other disposition~~ the provision of services relating to such Intellectual Property Collateral ~~shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same~~ subject to ~~be adjourned from time to time by announcement at the time and place fixed for sale~~such disposition, and such ~~sale may~~Grantor’s customer lists pertaining thereto, ~~without further notice, be made at the time and place~~ subject to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right appropriate confidentiality undertakings on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any Person receiving such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesproprietary information. (d) ~~If an Event of Default~~ The Collateral Agent shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required have no obligation to ~~remove~~ marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For ~~purposes~~ the purpose of ~~this Section 6.5, a written and fully executed agreement to purchase~~ enabling the Collateral ~~or any portion thereof~~ Agent, during the continuance of an Event of Default, to exercise rights and remedies under Sections 6 and 7 hereof at such time as the Collateral Agent shall be ~~treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be~~ lawfully entitled to ~~the return of the Collateral or any portion thereof subject thereto~~exercise such rights and remedies, ~~notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied~~ and ~~the Obligations paid in full. (f) To the extent permitted by applicable law~~for no other purpose, each Grantor hereby ~~waives all~~ grants to the Collateral Agent, to the extent assignable, an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of ~~redemption, stay, valuation and appraisal which~~ such Grantor to avoid the risk of invalidation of such Trademarks, to use, assign, license or sublicense any of the Intellectual Property now ~~has or may at any time in the future have under any rule of law or statute now existing~~ owned or hereafter ~~enacted~~acquired, developed or created by such Grantor, wherever the same may be located. Such license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout hereof.

Appears in 3 contracts

Samples: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (AAC Holdings, Inc.), Guarantee and Collateral Agreement (AAC Holdings, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at~~ exercise, upon prior written notice thereof to the ~~direction of the Required Lenders shall) exercise~~Borrower, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable law. Without limiting the generality of the foregoing, if an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law referred to below~~law) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.6, in accordance with the provisions of Section 6.5, only after deducting all reasonable out-of-pocket costs and expenses ~~of every kind~~ incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as is contemplated by Section 8.3 of the ~~order set forth in Section 6.4~~Credit Agreement, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-615(a)(3) of the ~~New York~~ UCC, ~~need~~ but only to the ~~Co-Collateral Agents account for~~ extent of the surplus, if any, owing to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the exercise by any of them of any rights hereunder, except to the extent caused by the gross negligence or willful misconduct of the Administrative Agent or such Secured Party or their respective agents. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Credit Agreement (Alarm.com Holdings, Inc.), Credit Agreement (Alarm.com Holdings, Inc.), Credit Agreement (Alarm.com Holdings, Inc.)

Code and Other Remedies. ~~(a) If an~~ Subject to Article XIV of each Participation Agreement, if a Lease Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the applicable Leveraged Lease Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. ~~Each Grantor~~ The Pledgor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent's request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at ~~such Grantor’s~~ the Pledgor's premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~SECTION 5.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the ~~other Credit~~ Secured Parties ~~hereunder,~~ hereunder (including, without limitation, reasonable attorneys’ ' fees and disbursements) and after crediting such proceeds to the subaccounts of the Collateral Account in accordance with SECTION 5.2, to the payment in whole or in part of the applicable Leveraged Lease Obligations, in such order as the ~~order set forth in Section 6.4~~Collateral Agent may elect, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Guarantee and Collateral Agreement (Eme Homer City Generation Lp), Guarantee and Collateral Agreement (Eme Homer City Generation Lp), Guarantee and Collateral Agreement (Eme Homer City Generation Lp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-Collateral Agents, on behalf of the Credit Parties~~Lender, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted ~~to them~~ in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Lender, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, ~~lease,~~ assign, give option or options to ~~purchase,~~ purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s 's board or office of ~~any Co-Collateral Agent or any Credit Party~~ the Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents or any other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived ~~and~~ or released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Lender shall apply any Proceeds from time to time held by it and the net proceeds of any ~~action taken by it pursuant to this Section 6.5~~such collection, recovery, receipt, appropriation, realization or sale, after deducting all ~~reasonable~~ costs and expenses of every kind incurred in ~~connection therewith~~ respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit Parties~~ Lender hereunder, including, without limitation, ~~reasonable attorneys’~~ attorney's fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Lender may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Lender of any other amount required by any provision of law, ~~including, without limitation, Section 9-615(a)(3) of the New York UCC,~~ need the ~~Co-Collateral Agents~~ Lender account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent or any other Credit Party~~ the Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 ten (10) days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Pledge and Security Agreement (Nevada Geothermal Power Inc), Development Loan Agreement (Nevada Geothermal Power Inc), Development Loan Agreement (Nevada Geothermal Power Inc)

Code and Other Remedies. (aSubject to subsection 3.3(d) If hereof, if an Event of Default shall occur and be continuing, the ~~Co-~~U.S. ABL Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. ~~Without~~ Subject to subsection 3.3(d) hereof, without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the U.S. ABL Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing and subject to each applicable Intercreditor Agreement) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the U.S. ABL Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~U.S. ABL Collateral ~~Agents’ request~~Agent’s request (subject to the terms of any documentation governing any Special Purpose Financing), to assemble the Security Collateral and make it available to the ~~Co-~~U.S. ABL Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~U.S. ABL Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the U.S. ABL Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the U.S. ABL Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: u.s. Guarantee and Collateral Agreement (Hd Supply, Inc.), Abl Credit Agreement (Hd Supply, Inc.), Guarantee and Collateral Agreement (Hd Supply, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC or~~ Code and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to the Intercreditor Agreement), to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~Subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~Subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Credit Agreement (Atkore International Group Inc.), Guarantee and Collateral Agreement (Unistrut International Holdings, LLC), Guarantee and Collateral Agreement (Unistrut International Holdings, LLC)

Code and Other Remedies. ~~(a)~~ If an Enforcement Event ~~of Default~~ shall ~~occur~~ have occurred and be continuing, upon the ~~Co-~~request of the requisite Shared Collateral ~~Agents~~Secured Parties, in accordance with the Intercreditor Agreement, the Shared Collateral Agent, on behalf of the ~~Credit~~ Shared Collateral Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Shared Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Shared Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Shared Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-~~Shared Collateral ~~Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-~~Any Shared Collateral ~~Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Shared Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Shared Collateral ~~Agents’~~ Agent’s request, to assemble the Shared Collateral and make it available to the ~~Co-~~Shared Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Shared Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Shared Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~7.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Shared Collateral or in any way relating to the Shared Collateral or the rights of the ~~Co-~~Shared Collateral ~~Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~7.5, and only after such application and after the payment by the ~~Co-~~Shared Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Shared Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Shared Collateral ~~Agent or any other Credit Party~~ Secured Parties arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Shared Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Credit Agreement (DEX ONE Corp), Credit Agreement (DEX ONE Corp), Credit Agreement (DEX ONE Corp)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit Parties~~Guaranteed Creditors, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this ~~Agreement~~ Agreement, the other Loan Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~law or otherwise available at law or equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances (i.e., during the continuance of an Event of Default) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Guaranteed Creditor or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Any Guaranteed Creditor shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Pledgor, which right or equity is hereby waived and ~~released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed~~ released (to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability extent permitted by law). If applicable to any ~~Grantor therefor. Each Grantor~~ particular item of Collateral, each Pledgor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such ~~Grantor~~Pledgor’s premises or elsewhere. Any such sale or transfer by the Administrative Agent either to itself or to any other Person shall be absolutely free from any claim of right by Pledgor, including any equity or right of redemption, stay or appraisal which Pledgor has or may have under any rule of law, regulation or statute now existing or hereafter adopted (and such Pledgor hereby waives any rights it may have in respect thereof). Upon any such sale or transfer, the Administrative Agent shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.01, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the ~~other Credit Parties~~ Guaranteed Creditors hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in accordance with Section 10.02(c) of the ~~order set forth in Section 6.4~~Credit Agreement, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required in connection therewith by any provision of law, including, without limitation, Section 9-~~615(a)(3)~~ 615 of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any ~~Grantor~~Pledgor. To the extent permitted by applicable law, each ~~Grantor~~ Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any ~~other Credit Party~~ Guaranteed Creditor arising out of the exercise by them of any ~~rights hereunder~~rights. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. ~~No Co-Collateral Agent shall be obligated to make any sale or other disposition~~ For the avoidance of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on creditdoubt, the ~~Obligations~~ remedies set forth in this Section 6.01(a) shall ~~not~~ only be ~~deemed to have been reduced as a result thereof unless and until payment is finally received thereon by~~ pursued during the ~~Co-Collateral Agents~~continuance of an Event of Default. (b) ~~If an Event~~ In the event that the Administrative Agent elects not to sell the Collateral in connection with the exercise of ~~Default shall occur and be continuing, with respect~~ remedies pursuant to ~~any Collateral consisting of Inventory~~Section 6.01(a), the ~~Co-~~Administrative Agent retains its rights to dispose of or utilize the Collateral ~~Agents may conduct one~~ or ~~more going out of business sales~~any part or parts thereof in any manner authorized or permitted by law or in equity, in and to apply the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property proceeds of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share~~ same towards payment of the ~~costs~~ Obligations. Each and ~~expenses incurred in their disposition) shall be the sole property~~ every method of disposition of the ~~Co-~~Collateral ~~Agents or such agent or contractor and neither any Grantor nor any Person claiming under or~~ described in ~~right of any Grantor~~ this Agreement shall ~~have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor~~constitute disposition in a commercially reasonable manner. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf In furtherance of and in ~~the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal~~ connection with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performancethis Section 6.01, the ~~Co-Collateral Agents~~ Administrative Agent may ~~enter upon, occupy, and use~~ appoint any ~~premises owned~~ Person as agent to perform any act or ~~occupied by each Grantor. The Co-Collateral Agents shall not be required~~ acts necessary or incident to ~~remove~~ any sale or transfer of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Guaranty and Collateral Agreement (Kodiak Oil & Gas Corp), Guaranty and Collateral Agreement (Whiting Petroleum Corp), Credit Agreement (Whiting Petroleum Corp)

Code and Other Remedies. (a) If an a Priority Lien Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Priority Lien Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Priority Lien Obligations, all rights and remedies of a ~~secured party~~ Priority Lien Secured Party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, if a Priority Lien Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or ~~may~~ may, subject to pre-existing rights and licenses, forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Priority Lien Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Priority Lien Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC, the Collateral Agent shall be entitled to use and apply any of ~~any claim then due and payable from any Grantor~~ the Priority Lien Obligations on a pro rata basis as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Collateral Agent at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the ~~Co-~~extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Collateral ~~Agents~~ Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or ~~any other Credit Party~~private sale from time to time by announcement at the time and place fixed therefor, and ~~the Co-Collateral Agents or~~ such ~~other Credit Party~~ sale may, ~~upon compliance with~~ without further notice, be made at the ~~terms~~ time and place to which it was so adjourned. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The CoCollateral Agent shall have the right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Collateral Agent shall have no obligation to marshal any of the Collateral. (b) Such Proceeds shall be applied or retained by the Collateral Agent in accordance with Section 3.4 of the Collateral Agency Agreement. The reasonable out-of-pocket expenses of the Collateral ~~Agents shall apply the net proceeds of any action taken by it pursuant to~~ Agent incurred in connection with actions undertaken as provided in this Section 6.5, ~~after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental~~ including with respect to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Priority Lien Secured Parties hereunder, ~~including~~shall be payable in accordance with the provisions of Section 7.11 of the Collateral Agency Agreement. (c) In the event of any Disposition of any of the Intellectual Property, ~~without limitation~~the goodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall be included, ~~reasonable attorneys’ fees and disbursements~~and, to the ~~payment~~ extent required under applicable law, the applicable Grantor shall supply the Collateral Agent or its designee with (i) copies of such Grantor’s documents and things embodying such Grantor’s know-how and expertise, relating to the exploitation of such Intellectual Property, including the manufacture, distribution, advertising and sale of products or the provision of services under such Intellectual Property, and (ii) copies of such Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of such products and services. (d) For the purpose of enabling Collateral Agent to exercise rights and remedies under this Section 6.5 (including in ~~whole~~ order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or ~~in part~~ grant options to purchase any Collateral) at such time as Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to Collateral Agent, for the benefit of the ~~Obligations~~Priority Lien Secured Parties, subject to pre-existing rights and licenses, (i) an irrevocable, nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the ~~order set forth~~ case of Trademarks, to sufficient rights to quality control and inspection in ~~Section 6.4~~favor of such Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, license, sublicense, and ~~only after~~ otherwise exploit any and all Intellectual Property now owned and held or hereafter acquired or created by such ~~application~~ Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and ~~after~~ to all software and programs used for the ~~payment~~ compilation or printout thereof to the extent permitted by the ~~Co-~~terms of applicable licenses) and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by such Grantor. (e) The Collateral ~~Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3)~~ Agent shall incur no liability as a result of the ~~New York UCC~~sale of the Collateral, ~~need~~ or any part thereof, at any private or public sale pursuant to this Agreement conducted in accordance with the ~~Co-Collateral Agents account for the surplus, if any, to any Grantor~~requirements of applicable laws. To the extent permitted by applicable law, ~~each Grantor waives all claims, damages and demands it may acquire~~ the Grantors hereby waive any claims against ~~any Co-~~the Collateral Agent ~~or any other Credit Party~~ and the Priority Lien Secured Parties arising ~~out of the exercise~~ by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless reason of the fact that ~~notice of~~ the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or ~~other disposition~~ was less than the aggregate amount of the Priority Lien Obligations, even if the Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree, provided that such ~~Collateral shall have been given~~private sale is conducted in accordance with applicable laws and this Agreement. The ~~Co-Collateral Agents may, without notice or publication, adjourn~~ Grantors hereby agree that in respect of any ~~public or private~~ sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of ~~such sale. If~~ any of the Collateral pursuant to the terms hereof, the Collateral Agent is ~~sold, leased~~hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable laws, or ~~otherwise disposed~~ in order to obtain any required approval of the sale or of the purchaser by ~~the Co-Collateral Agents on credit~~any Governmental Authority or official, ~~the Obligations~~ and each Grantor further agrees that such compliance shall not, in and of itself, result in such sale being considered or deemed not ~~be deemed~~ to have been ~~reduced as~~ made in a ~~result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default~~ commercially reasonable manner, nor shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral ~~from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents~~ Agent be liable or accountable to any Grantor for ~~use or occupancy~~ any discount allowed by ~~the Co-Collateral Agents~~ reason of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that ~~after the Co-~~such Collateral ~~Agents shall have entered into~~ is sold in compliance with any such ~~an agreement all Events of Default shall have been remedied and the Obligations paid in full~~limitation or restriction. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 3 contracts

Samples: Collateral Agreement (Gogo Inc.), Collateral Agreement, Collateral Agreement (Gogo Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may exercise (~~and at~~ subject to obtaining any required approvals from any Governmental Authorities that may not be waived by the ~~direction of the Required Lenders shall) exercise~~Grantors), in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Administrative Agent may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event~~ In the event of ~~Default~~ any Disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Administrative Agent or its designee with such Grantor's know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any ~~Collateral consisting of Inventory~~Intellectual Property subject to such Disposition, and such Grantor's customer lists and other records and documents relating to such Intellectual Property and to the ~~Co-Collateral Agents may conduct one or more going out of business sales~~manufacture, ~~in the Co-Collateral Agents’ own right or by one or more agents~~ distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Wynn Resorts LTD), Guarantee and Collateral Agreement (Wynn Las Vegas LLC)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC or~~ Code and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to the Intercreditor Agreements), to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~Subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~Subsection 6.5, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Credit Agreement (Emergency Medical Services CORP), Guarantee and Collateral Agreement (Emergency Medical Services CORP)

Code and Other Remedies. (a) If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below, by the Credit Agreement, this Agreement or any other Loan Document) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall, to the extent permitted by law, 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 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. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s reasonable written request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere upon the occurrence and during the continuance of any Event of Default. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. For the avoidance of doubt, the Administrative Agent may only exercise the rights and remedies set forth in this section if an Event of Default has occurred and is continuing. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be paid in accordance with the Credit Agreement, to the payment in whole or in part of the ~~Obligations,~~ Secured Obligations in ~~the order set forth in~~ accordance with Section ~~6.4,~~ 6.5 and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. (c) Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Equity Interests or the Pledged Debt Securities, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. If Each Grantor acknowledges and agrees that any ~~notice of a proposed~~ such private sale or may result in prices and other ~~disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper~~ terms less favorable than if ~~given at least 10 days before~~ such sale ~~or other disposition. No Co-Collateral Agent shall be obligated to make~~ were a public sale and, notwithstanding such circumstances, agrees that any ~~sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of~~ such ~~Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or~~ private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been ~~reduced as~~ made in a ~~result~~ commercially reasonable manner. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests or the Pledged Debt Securities for the period of time necessary to permit the Issuer thereof ~~unless and until payment is finally received thereon by~~ to register such securities for public sale under the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leasedSecurities Act, or ~~occupied by any Grantor. The Co-Collateral Agents and any~~ under applicable state securities laws, even if such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations Issuer would agree to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesdo so. (d) ~~If an Event~~ Each Grantor agrees to use its commercially reasonable efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of ~~Default shall occur and be continuing, with~~ all or ~~without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use~~ any ~~premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any~~ portion of the ~~Collateral from any such premises upon~~ Pledged Equity Interests or the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises Pledged Debt Securities pursuant to this Section ~~6.5, nor for~~ 6.6 valid and binding and in compliance with any ~~charge (such as wages for the Grantors’ employees~~ and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all ~~Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by~~ other applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Ollie's Bargain Outlet Holdings, Inc.), Guarantee and Collateral Agreement (Ollie's Bargain Outlet Holdings, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, ~~may (~~may, and at upon the ~~direction~~ request of the Required Lenders shall) , exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, to the extent permitted by applicable law, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit ~~risk. Each purchaser at any such sale shall hold~~ risk (it being understood that ownership of the ~~property sold absolutely, free from any claim or right on~~ Pledged Stock issued by the ~~part~~ HUD Owners and the HUD Lessees may only be transferred with the approval of ~~any Grantor~~the U.S. Department of Housing and Urban Development). The ~~Co-~~Collateral ~~Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~5.5, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Credit Agreement (Universal Health Services Inc), Supplemental Indenture (Universal Health Services Inc)

Code and Other Remedies. (a) If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below, by the Credit Agreement, this Agreement or any other Loan Document) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall, to the extent permitted by law, 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 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. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s reasonable written request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere upon the occurrence and during the continuance of any Event of Default. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be paid in accordance with the Credit Agreement, to the payment in whole or in part of the ~~Obligations,~~ Obligations in ~~the order set forth in~~ accordance with Section ~~6.4,~~ 6.5 and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Generac Holdings Inc.), Guarantee and Collateral Agreement (Generac Holdings Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~Law or in equity. ~~Without~~ If an Event of Default shall occur and be continuing, without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law~~ Law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale~~ If an Event of Default shall ~~hold the property sold absolutely~~occur and be continuing, ~~free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by ~~law~~Law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Administrative Agent, as agent for and representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Administrative Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by Law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Administrative Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6 hereof, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable ~~law~~Law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by ~~them~~ it of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default shall occur and be continuing, with respect to~~ any ~~Collateral consisting~~ Disposition of ~~Accounts~~any of the Grantor Intellectual Property, the Cogoodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall supply the Administrative Agent or its designee with any documents and things embodying Grantor’s know-~~Collateral Agents may: (i) demand~~how and expertise relating to the manufacture, ~~collect~~ distribution, advertising and ~~receive any amounts~~ sale of products or the provision of services relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor ~~and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise~~ Intellectual Property subject to such ~~Accounts or securing or~~ Disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Grantor Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Bridge Facility Agreement (Post Holdings, Inc.), Credit Agreement (Post Holdings, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-Collateral Agents~~extent permitted by applicable law, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Permitted Receivables Transaction) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-Collateral Agents’ request~~Administrative Agent’s request (subject to the terms of any documentation governing any Permitted Receivables Transaction), to assemble the Security Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Administrative Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (VWR International, Inc.), Guarantee and Collateral Agreement (VWR International, Inc.)

Code and Other Remedies. (a) If Subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other ~~instrument or agreement securing, evidencing or relating to the Obligations~~Second Lien Security Documents, all rights and remedies of a secured party under the New York UCC (whether or not in effect in the jurisdiction where such rights are exercised) or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required in this Agreement, any other Note Document or by ~~law referred to below~~law) to or upon any Grantor or any other Person (all and each of ~~which~~ such demands, defenses, advertisements and notices are hereby ~~waived~~waived to the extent not prohibited by applicable law or statute), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, subject to the Intercreditor Agreement, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to ~~purchase,~~ purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or ~~office of any Co-Collateral Agent or any Credit Party or~~ elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem ~~best~~commercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser~~ The Collateral Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at ~~any~~ the time and place fixed therefor, and such sale ~~shall hold~~ may, without further notice, be made at the ~~property sold absolutely, free from any claim or right on~~ time and place to which it was so adjourned. To the ~~part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to the~~ maximum extent permitted by law, ~~upon~~ each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale ~~or sales~~was less than the price that might have been obtained at a public sale, ~~to purchase the whole or any part of~~ even if the Collateral ~~so sold~~Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, ~~free of~~ as to title or as to any ~~right~~ other matter, in connection with such sale or ~~equity of redemption, stay, valuation or appraisal on the part of any Grantor, which right or equity is hereby waived and released~~other disposition, and ~~may credit against~~ its doing so shall not be considered adversely to affect the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose commercial reasonableness of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises sale or ~~elsewhere~~other disposition. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.04, after deducting all reasonable documented out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be reimbursed under Section 7.09, to the payment in whole or in part of the Obligations, in ~~the~~ such order as set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder5.03. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property Without limitation of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred foregoing in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutelythis Section 5.04, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the ~~purposes~~ purpose of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of enabling the Collateral ~~from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable~~ Agent to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise ~~of the Co-Collateral Agents’~~ its rights and remedies ~~hereunder. (e) For purposes of~~ under this ~~Section 6.5, a written and fully executed agreement to purchase~~ Agreement at such time as the Collateral ~~or any portion thereof~~ Agent shall be ~~treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be~~ lawfully entitled to ~~the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into~~ exercise such ~~an agreement all Events of Default shall have been remedied~~ rights and ~~the Obligations paid in full. (f) To the extent permitted by applicable law~~remedies, each Grantor hereby ~~waives all rights~~ grants to the Collateral Agent a nonexclusive license (exercisable without payment of ~~redemption~~royalty or other compensation to the Grantors), ~~stay~~subject in each case to the terms of any applicable Copyright License, ~~valuation~~ Patent License or Trademark License, to use, license and ~~appraisal which such Grantor now has or may at~~ sublicense any ~~time~~ Intellectual Property included in the ~~future have under~~ Collateral (with respect to Trademarks, subject to reasonable quality control in favor of such Grantor), including in such license reasonable access to all media in which any ~~rule~~ of ~~law~~ such Intellectual Property may be recorded or ~~statute now existing~~ stored and to all computer software and programs used for the compilation or ~~hereafter enacted~~printout thereof. Such license may be exercised by the Collateral Agent only upon the occurrence of, and during the continuation of, an Event of Default; provided that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.

Appears in 2 contracts

Samples: Second Lien Security Agreement, Second Lien Security Agreement (Roundy's, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Notes Secured Parties, ~~may (~~may, and at upon the ~~direction~~ request of the ~~Required Lenders~~ Notes Secured Parties shall) , exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Notes Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Notes Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Notes Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Notes Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Notes Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~5.3, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Notes Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Collateral Agreement (United States Steel Corp), Collateral Agreement (United States Steel Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, ~~may~~ may, and (~~and~~ subject to Section 9 of the Credit Agreement) at the direction of the Required Lenders shall) , exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable and documented costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the ~~Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder~~Collateral, including, without limitation, reasonable and documented attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in the order ~~set forth~~ provided for in Section ~~6.4~~6.5, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (M & F Worldwide Corp), Guarantee and Collateral Agreement (Barton Protective Services LLC)

Code and Other Remedies. (a) If an Event of Default ~~shall occur and be continuing~~exists, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, (i) may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement, the Credit Agreement and the other Loan Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law. Without~~ law or otherwise available at law or equity and (ii) without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, presentment, protest, notice of intent to accelerate, notice of acceleration advertisement or notice of any kind (except any notice required by law referred to below, which cannot be waived by law and any notice that is expressly required under this Agreement or any other Loan Document) to or upon any ~~Grantor~~ Obligor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~waived~~waived to the extent permitted by applicable law), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, ~~give~~ grant option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it the Required Lenders may deem advisable and at such prices as it the Required Lenders may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Obligor, which right or equity is hereby waived and released. If an Event of Default shall occur and be continuing, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor each Obligor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Obligor’s premises or elsewhere. Any such sale or transfer by the Agent either to itself or to any other Person shall be absolutely free from any claim of right by Obligor, including any equity or right of redemption, stay or appraisal which Obligor has or may have under any rule of law, regulation or statute now existing or hereafter adopted (and such Obligor hereby waives any rights it may have in respect thereof). Upon any such sale or transfer, the Agent shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The ~~Co-Collateral Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.1, after deducting all reasonable fees, costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in accordance with the ~~order set forth in Section 6.4~~Credit Agreement, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3)~~ 615 of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any ~~Grantor~~Obligor. To the extent permitted by applicable law, each ~~Grantor~~ Obligor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder, except where arising as a result of the Agent’s or any Secured Party’s gross negligence or willful misconduct, as determined by a final non-appealable decision of a court of competent jurisdiction. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event of Default shall occur and be continuing, with respect~~ In the event that the Agent elects not to ~~any Collateral consisting of Inventory~~sell the Collateral, the ~~Co-~~Agent retains its rights to dispose of or utilize the Collateral ~~Agents may conduct one~~ or ~~more going out of business sales~~any part or parts thereof in any manner authorized or permitted by law or in equity, in and to apply the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property proceeds of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share~~ same towards payment of the ~~costs~~ Obligations. Each and ~~expenses incurred in their disposition) shall be the sole property~~ every method of disposition of the ~~Co-~~Collateral ~~Agents or such agent or contractor and neither any Grantor nor any Person claiming under or~~ described in ~~right of any Grantor~~ this Agreement shall ~~have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor~~constitute disposition in a commercially reasonable manner. (c) If The Agent may appoint any Person as agent to perform any act or acts necessary or incident to any sale or transfer of the Collateral. Except when an Event of Default ~~shall occur~~ has occurred and be is continuing, ~~with respect to~~ neither the Agent nor any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle Secured Party shall contact or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect ofcommunicate with, or ~~otherwise deal~~ attempt to contact or communicate with ~~or exercise rights in respect of,~~ any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents customer of any ~~premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred~~ Obligor in connection with the ~~Co-~~Collateral ~~Agents’ exercise~~ except with the participation of ~~the Co-Collateral Agents’ rights and remedies hereunder~~a Responsible Officer of such Obligor. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guaranty and Security Agreement (Hornbeck Offshore Services Inc /La), Guaranty and Security Agreement

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement, the Credit Agreement and the other Loan Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~law or otherwise available at law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. Upon any such sale or transfer, the Collateral Agent shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, ~~including, without limitation, reasonable~~ including attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Collateral Agent may elect, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-615(a)(3) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event of Default shall occur and be continuing, with respect~~ In the event that the Collateral Agent elects not to ~~any Collateral consisting of Inventory~~sell the Collateral, the ~~Co-~~Collateral ~~Agents may conduct one~~ Agent retains its rights to dispose of or ~~more going out of business sales~~utilize the Collateral or any part or parts thereof in any manner authorized or permitted by law or in equity, in and to apply the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property proceeds of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share~~ same towards payment of the ~~costs~~ Obligations. Each and ~~expenses incurred in their disposition) shall be the sole property~~ every method of disposition of the ~~Co-~~Collateral ~~Agents or such agent or contractor and neither any Grantor nor any Person claiming under or~~ described in ~~right of any Grantor~~ this Agreement shall ~~have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor~~constitute disposition in a commercially reasonable manner. (c) If The Collateral Agent will not submit a “Notice of Exclusive Control” under a Deposit Account Control Agreement or a Securities Account Control Agreement, as applicable, unless an Event of Default ~~shall occur~~ has occurred and ~~be continuing, with respect to any Collateral consisting of Accounts,~~ is continuing at the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name time of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposessubmission. (d) ~~If an Event of Default shall occur and be continuing, with~~ The Collateral Agent may appoint any Person as agent to perform any act or ~~without legal process and with~~ acts necessary or ~~without prior notice~~ incident to any sale or ~~demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any~~ transfer of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Security Agreement (Mips Technologies Inc), Revolving Credit Agreement (Mips Technologies Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Second Lien Administrative Agent or the Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, subject to the terms and conditions set forth in the Intercreditor Agreement, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, each of the ~~Co-~~Second Lien Administrative Agent and the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), ~~may (~~may, subject to the terms and at conditions set forth in the ~~direction of the Required Lenders shall)~~ Intercreditor Agreement, in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall, to the extent permitted by law, constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere upon the occurrence and during the continuance of any Event of Default. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right, subject to the terms and conditions set forth in the Intercreditor Agreement, to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be paid in accordance with the First Lien Credit Agreement, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other ~~amount~~ required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an~~ Upon the occurrence and during the continuance of any Event of ~~Default~~ Default, in the event of any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Second Lien Guarantee and Collateral Agreement (Generac Holdings Inc.), Second Lien Guarantee and Collateral Agreement (Generac Holdings Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC or~~ Code, under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Hertz Corp), Guarantee and Collateral Agreement (Hertz Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall, to the extent permitted by law, 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 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. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere upon the occurrence and during the continuance of any Event of Default. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and ~~disbursements~~disbursements to the extent required to be paid in accordance with the First Lien Credit Agreement, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other ~~amount~~ required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an~~ Upon the occurrence and during the continuance of any Event of ~~Default~~ Default, in the event of any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Administrative Agent or its designee with such Grantor’s know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: First Lien Guarantee and Collateral Agreement (Generac Holdings Inc.), First Lien Guarantee and Collateral Agreement (Generac Holdings Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit Parties~~Secured Parties and the holders of Equally and Ratably Secured Notes Obligations, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ Applicable UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or or, to the extent permitted by law, private sale or sales, at any exchange, broker’s board or office of the Administrative Agent, any ~~Co-Collateral Agent~~ other Secured Party or any ~~Credit Party~~ holder of Equally and Ratably Secured Notes Obligations or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely~~The Administrative Agent, ~~free from any claim or right on the part of any Grantor. The Co-Collateral Agents or~~ any other ~~Credit~~ Secured Party and any holder of Equally and Ratably Secured Notes Obligations shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~7.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York~~ Applicable UCC, in accordance with Section 7.3 and only then need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Administrative Agent, any ~~Co-Collateral Agent~~ other Secured Party or any ~~other Credit Party~~ holder of Equally and Ratably Secured Notes Obligations arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Credit Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC)

Code and Other Remedies. (a) If During the existence of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit Parties~~Lenders, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral but to the extent such exercise is not prohibited by applicable law) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), ~~may (and at~~ may, during the ~~direction~~ existence of ~~the Required Lenders shall) in such circumstances~~ an Event of Default, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Lender, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such commercially reasonable prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Agent, as agent for and representative of the Lender (but not any ~~claim then due~~ Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Lenders in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ prior written notice to such Grantor 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 Collateral ~~Agents~~ 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. The Agent may sell the Collateral without giving any warranties as to the Collateral. The Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold~~even if the Agent accepts the first offer received and does not offer such Collateral to more than one offeree. During the existence an Event of Default, ~~retain and dispose of such property without further accountability to any Grantor therefor. Each~~ each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. During the existence of an Event of Default, the Agent shall have the right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The ~~Co-Collateral Agents~~ Agent shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds of any action taken by it pursuant to this Section 6.5, after deducting~~ Collateral. (b) The Agent shall deduct from such Proceeds all reasonable out-of-pocket costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit Parties~~ Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied or retained by the ~~payment~~ Agent in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.4. Only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any Grantor. If the Agent sells any of the Collateral upon credit, the applicable Grantor will be credited only with payments actually made by the purchaser and received by the Agent. In the event the purchaser fails to pay for the Collateral, the Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit Party~~ Lender arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an~~ During the existence of any Event of ~~Default shall occur and be continuing~~Default, ~~with respect to any Collateral consisting~~ upon the written demand of ~~Accounts~~the Agent, the ~~Co-Collateral Agents may: (i) demand~~applicable Grantor shall execute and deliver to the Agent an assignment or assignments of the registered Patents, ~~collect~~ Trademarks and/or Copyrights and ~~receive any amounts relating thereto~~goodwill and such other documents as are necessary or appropriate to carry out the intent and purposes hereof. Grantor shall make available to the Agent, to the extent within such Grantor’s power and authority, such personnel in such Grantor’s employ as the ~~Co-Collateral Agents~~ Agent may reasonably ~~determine; (ii) commence~~ designate to permit such Grantor to continue, directly or indirectly, to produce, advertise and ~~prosecute any actions in any court for~~ sell the ~~purposes of collecting any~~ products and services sold by such ~~Accounts~~ Grantor under the registered Patents, Trademarks and/or Copyrights, and ~~enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give~~ such ~~discharges or releases as~~ persons shall be available to perform their prior functions on the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesAgent’s behalf. (d) If Solely for the purpose of enabling the Agent to exercise rights and remedies under this Section 5.5, during the existence of an Event of Default as the Agent shall ~~occur and~~ be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required lawfully entitled to ~~remove any of the Collateral from any~~ exercise such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable lawremedies, each Grantor hereby ~~waives all~~ grants to the Agent, for the benefit of the Lenders, (i) an irrevocable, nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of ~~redemption, stay, valuation and appraisal which~~ such Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, license, sublicense, and otherwise exploit any and all Intellectual Property now ~~has~~ owned or ~~may at any time in the future have under any rule of law or statute now existing~~ held or hereafter ~~enacted~~acquired or held by such Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof) to the extent constituting Collateral and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by such Grantor.

Appears in 2 contracts

Samples: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Midcoast Energy Partners, L.P.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~Law or in equity. ~~Without~~ If an Event of Default shall occur and be continuing, without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law~~ Law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale~~ If an Event of Default shall ~~hold the property sold absolutely~~occur and be continuing, ~~free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by ~~law~~Law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Administrative Agent, as agent for and representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Administrative Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by Law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Administrative Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06 hereof, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable ~~law~~Law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by ~~them~~ it of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default shall occur and be continuing, with respect to~~ any ~~Collateral consisting~~ Disposition of ~~Accounts~~any of the Grantor Intellectual Property, the Cogoodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall supply the Administrative Agent or its designee with any documents and things embodying Grantor’s know-~~Collateral Agents may: (i) demand~~how and expertise relating to the manufacture, ~~collect~~ distribution, advertising and ~~receive any amounts~~ sale of products or the provision of services relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor ~~and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise~~ Intellectual Property subject to such ~~Accounts or securing or~~ Disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Grantor Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Bellring Brands, Inc.), Guarantee and Collateral Agreement (Post Holdings, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent's request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor's know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor's customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Alpha Natural Resources, Inc.), Guarantee and Collateral Agreement (Alpha NR Holding Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition . (c) In the event of any ~~Collateral if it shall determine not to do so, regardless~~ Disposition of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the ~~Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless~~ Intellectual Property and ~~until payment is finally received thereon by the Co-Collateral Agents. (b) If~~ if an Event of Default shall ~~occur~~ have occurred and be continuing, the goodwill of the business connected with ~~respect~~ and symbolized by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall supply the Administrative Agent or its designee with such Grantor's know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any ~~Collateral consisting of Inventory~~Intellectual Property subject to such Disposition, and such Grantor's customer lists and other records and documents relating to such Intellectual Property and to the ~~Co-Collateral Agents may conduct one or more going out of business sales~~manufacture, ~~in the Co-Collateral Agents’ own right or by one or more agents~~ distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Rent a Center Inc De), Guarantee and Collateral Agreement (Rent a Center Inc De)

Code and Other Remedies. ~~(a) If~~ Subject to the terms of the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, subject to the ~~Co-Collateral Agents~~terms of the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may reasonably deem ~~advisable and at such prices as it may deem best~~advisable, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, following and during the continuance of an Event of Default, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Administrative Agent may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~Laws or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law~~ applicable Laws referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ collect, receive, appropriate and realize upon the Collateral, or any part thereof, ~~and/or~~ and may ~~forthwith~~ sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by ~~law~~applicable Laws, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Laws) all rights of redemption, stay or appraisal which it now has or may ~~credit~~ at any time in the future have under any Laws now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by applicable Laws, at least ten days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable Laws, each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. To the extent permitted by applicable Laws, and so long as an Event of Default is continuing, the Collateral Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other ~~amount~~ amounts required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable ~~law~~Laws, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by ~~them~~ any Secured Party of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Collateral Agent or its designee with ~~respect~~ such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: First Lien Pledge and Security Agreement (McDermott International Inc), Credit Agreement (McDermott International Inc)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur~~ Default, and ~~be continuing~~upon the Administrative Agent’s notice of its intent to exercise such rights to the relevant Grantor or Grantors, each Grantor agrees to deliver each item of Collateral to the ~~Co-Collateral Agents~~Administrative Agent on demand, and it is agreed that the Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or the PPSA (whether or not the New York UCC or the PPSA applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, ~~defenses~~defenses (other than the defense of payment or performance of the Discharge of Obligations), advertisements and notices are hereby ~~waived~~waived to the extent permitted by applicable law), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Grantor of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and ~~deliver~~ deliver, or acquire by credit bid on behalf of the Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk, it being understood that any sale pursuant to the provisions of this Section 6.5 shall be deemed to conform to the commercially reasonable standards under the UCC or the PPSA, as applicable, with respect to any disposition of Collateral. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the fullest extent permitted by applicable law, each ~~Grantor waives all claims, damages and demands~~ purchaser at any such sale shall hold the property sold to it ~~may acquire against~~ absolutely free from any ~~Co-Collateral Agent~~ claim or ~~any other Credit Party arising out of~~ right on the ~~exercise by them~~ part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights ~~hereunder~~of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. ~~If any~~ Each Grantor agrees that, to the extent notice of ~~a proposed~~ sale ~~or other disposition of Collateral~~ shall be required by law, ~~such notice shall be deemed reasonable and proper if given~~ at least ~~10 days before~~ ten days’ notice to such Grantor of the time and place of any public sale or ~~other disposition~~the time after which any private sale is to be made shall constitute reasonable notification. ~~No Co-Collateral~~ The Administrative Agent shall not be obligated to make any sale ~~or other disposition~~ of ~~any~~ Collateral ~~if it shall determine not to do so,~~ regardless of ~~the fact that~~ notice of sale ~~or other disposition of such Collateral shall have~~ having been given. The ~~Co-Collateral Agents may, without notice or publication,~~ Administrative Agent may adjourn any public or private sale ~~or cause the same to be adjourned~~ from time to time by announcement at the time and place fixed ~~for sale~~therefor, and such sale may, without further notice, be made at the time and place to which ~~the same~~ it was so adjourned. ~~Any public~~ The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. To the fullest extent permitted by applicable law, this procedure will not be considered to adversely affect the commercial reasonableness of any sale ~~shall~~ of the Collateral. Each Grantor agrees that it would not be ~~held at such time or times within ordinary business hours and at such place or places as~~ commercially unreasonable for the ~~Co-Collateral Agents may fix and state in the notice of such sale. If any~~ Administrative Agent to dispose of the Collateral ~~is sold, leased~~or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or ~~otherwise disposed~~ that match buyers and sellers of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest thereinassets. Each such purchaser at any such ~~going out of business~~ sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. , and each Grantor hereby waives (cto the extent permitted by law) If all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. As an ~~Event~~ alternative to exercising the power of ~~Default shall occur and be continuing, with respect to any Collateral consisting of Accounts~~sale herein conferred upon it, the CoAdministrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-~~Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as~~ appointed receiver. In the ~~Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for~~ event of a foreclosure by the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, Administrative Agent on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral ~~from~~ pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such ~~premises upon the Co-Collateral Agents taking possession thereof~~sale or other disposition, and ~~may render~~ the Administrative Agent, at the direction of the Required Lenders, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Borrower Obligations as a credit on account of the purchase price for any Collateral ~~unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy~~ payable by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise Administrative Agent on behalf of the ~~Co-Collateral Agents’ rights and remedies hereunder. (e)~~ Secured Parties at such sale or other disposition. For purposes ~~of this Section 6.5~~hereof, a written ~~and fully executed~~ agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof~~. The Co-Collateral Agents~~ ; the Administrative Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the ~~Co-Collateral Agents~~ Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full~~. (f)~~ . To the extent permitted by applicable law, each Grantor ~~hereby~~ waives all claims, damages and demands it may acquire against the Administrative Agent or any Secured Party arising out of the exercise by them of any of their rights hereunder. Each Grantor further agrees, at the Administrative Agent’s reasonable request, if an Event of Default has occurred and is continuing, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable out-of-pocket costs and expenses of the Administrative Agent of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of ~~redemption~~the Secured Parties hereunder, ~~stay~~including reasonable out-of-pocket attorneys’ fees and disbursements, ~~valuation~~ to the payment in whole or in part of the Obligations in accordance with Section 6.4 and ~~appraisal which~~ only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a) of the New York UCC and the PPSA, need the Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to Indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by them of any rights hereunder. (c) In view of the position of the Grantors in relation to the Collateral, or because of other current or future circumstances, a question may arise under the U.S. Securities Act of 1933 or the Securities Act (Ontario), as now ~~has~~ or ~~may at~~ hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the ~~future~~ “Securities Laws”) with respect to any disposition of the Collateral permitted hereunder. Each Grantor understands that compliance with the Securities Laws might very strictly limit the course of conduct of the Administrative Agent if the Administrative Agent were to attempt to dispose of all or any part of the Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Administrative Agent in any attempt to dispose of all or part of the Collateral under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Administrative Agent may, with respect to any sale of the Collateral, limit the purchasers to those who will agree, among other things, to acquire such Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Administrative Agent, in its sole and absolute discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Collateral or part thereof shall have been filed under the Securities Laws and (b) may approach and negotiate with a limited number of potential purchasers (including a single potential purchaser) to effect such sale. Each Grantor acknowledges and agrees that any ~~rule~~ such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of ~~law~~ any such sale, the Administrative Agent shall incur no responsibility or ~~statute now existing~~ liability for selling all or ~~hereafter enacted~~any part of the Collateral at a price that the Administrative Agent, in its sole and absolute discretion, may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a limited number of purchasers (or a single purchaser) were approached. The provisions of this Section 6.5 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Administrative Agent sells.

Appears in 2 contracts

Samples: Senior Lien Term Loan Credit Agreement (Forterra, Inc.), Junior Lien Term Loan Credit Agreement (Forterra, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed~~ fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to ~~the Co-Collateral Agents or~~ more than one offeree; provided that any ~~other Credit Party~~such sale shall be conducted in a commercially reasonable manner (it being understood and agreed that, ~~and the Co-Collateral Agents or such other Credit Party may, upon compliance with~~ the terms of ~~sale, hold, retain and dispose of such property without further accountability~~ a commercially reasonable sale expressly agreed in this Section 6.6 shall apply to any ~~Grantor therefor~~such sale). Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the ~~net~~ proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the ~~order set forth in Section 6.4~~Collateral Agent may elect, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder~~. If~~ , other than any ~~notice~~ such claims, damages and demands found by a final and nonappealable decision of a ~~proposed sale~~ court of competent jurisdiction to have resulted from the gross negligence or ~~other disposition~~ willful misconduct of the Collateral ~~shall be required by law~~Agent or such Secured Party, ~~such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition~~as applicable. ~~No Co-~~The Collateral Agent shall ~~be obligated~~ have the right to ~~make any sale or other disposition of~~ enter onto the property where any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time is located and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, take possession thereto with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderjudicial process. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (B&G Foods, Inc.), Guarantee and Collateral Agreement (B&G Foods, Inc.)

Code and Other Remedies. ~~(a) If~~ Subject to each applicable Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may (~~and at the direction of the Required Lenders shall~~but shall not be obligated to) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code (whether or not the Code applies to the affected Security Collateral) and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances (but shall not be obligated to), forthwith (subject to the terms of any documentation governing any Special Purpose Financing) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to the terms of any documentation governing any Special Purpose Financing and subject to each applicable Intercreditor Agreement), to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in Section ~~6.4~~6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. ~~No Co~~Each Grantor hereby consents to the non-exclusive royalty free use by the Collateral Agent ~~shall be obligated to make any sale or other disposition~~ of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state Intellectual Property included in the ~~notice of such sale. If any of the~~ Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of ~~collecting~~ disposing of any Security Collateral. Each Grantor also hereby consents to the non-exclusive royalty free use by the Collateral Agent and the Canadian Collateral Agent (as its designee) of any trademarks, service marks or business names owned by such ~~Accounts and enforcing~~ Grantor in Canada solely for the purposes of disposing of any ~~other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-~~Security Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable Canadian Borrowers that is pledged to the ~~Grantors. In no event shall the Co-~~Canadian Collateral ~~Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises~~ Agent pursuant to ~~this Section 6.5, nor for any charge (such as wages for~~ the ~~Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder~~Canadian Security Documents. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: u.s. Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (Herc Holdings Inc)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, subject to the ~~Co-Collateral Agents~~terms of the Loan Documents and the Intercreditor Agreement: (a) The Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ the Secured Parties in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law.~~ law or in equity. (b) Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgors or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. . (c) Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgors, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Debtor Relief Laws (as defined in the Credit Agreement), the Administrative Agent, as agent for and representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the requisite percentage of holders under the applicable Loan Document shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Administrative Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of each Pledgor, and such Pledgor hereby waive (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. (d) Each Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such 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 Administrative Agent shall not be obligated to make any sale of Collateral ~~Agents~~ 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Pledgor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Pledgor hereby waives any claims against the ~~Co-~~Administrative Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each ~~Grantor~~ Pledgor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such ~~Grantor~~Pledgor’s premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located without any obligation to pay rent and take possession thereof with or without judicial process. The Administrative Agent shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds~~ Collateral. (e) Subject to the Intercreditor Agreement, the Administrative Agent shall deduct from any Proceeds received in respect of ~~any action taken by it pursuant to this Section 6.5, after deducting~~ the Collateral all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied or retained by the ~~payment~~ Administrative Agent in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.2. Only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to the Pledgors. If the Administrative Agent sells any ~~Grantor~~of the Collateral upon credit, the Pledgors will be credited only with payments actually made by the purchaser and received by the Administrative Agent. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Pledgors shall be credited with proceeds of the sale. To the extent permitted by applicable law, ~~each Grantor~~ the Pledgors waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent ~~or any other Credit Party~~ arising out of the exercise by ~~them~~ it of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Liberty Global PLC), Second Lien Credit Agreement (Liberty Global PLC)

Code and Other Remedies. ~~(a) If~~ Subject to the terms of the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, subject to the ~~Co-~~terms of the Intercreditor Agreement, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and ~~released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed~~ released to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor thereforextent permitted by law. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent's request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section ~~6.4~~6.5 hereof, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder, except for gross negligence or willful misconduct on the part of the Collateral Agent or such other Secured Party. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 20 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Second Lien Collateral Agreement (Paperweight Development Corp), Second Lien Collateral Agreement (Paperweight Development Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Trustee, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral ~~Agent~~ Trustee or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at~~ In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Trustee until the sale price is paid by the purchaser(s) thereof, but the Collateral Trustee shall not incur any liability in case any such ~~sale~~ purchaser(s) shall ~~hold~~ fail to take up and pay for the ~~property~~ Collateral so sold ~~absolutely~~and, ~~free from any claim or right on the part~~ in case of any ~~Grantor~~such failure, such Collateral may be sold again upon like notice. ~~The Co-Collateral Agents or any other Credit~~ Any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, stay, valuation or appraisal on the part of any Grantor, which right or equity is hereby waived and released. Each Grantor hereby waives, ~~and may credit~~ to the extent permitted by law, any claims against the ~~purchase price the amount of~~ Collateral Trustee or any ~~claim then due and payable from any Grantor on account~~ Secured Party arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Trustee accepts the first offer received and ~~dispose~~ does not offer such Collateral to more than one offeree; provided that the foregoing waiver shall not affect the obligations of ~~such property without further accountability~~ the parties to ~~any Grantor therefor~~exercise remedies under this Agreement in a commercially reasonable manner in accordance with applicable law. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Trustee’s request and at such Grantor’s expense, (i) to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Trustee at places which the ~~Co-~~Collateral ~~Agents~~ Trustee shall reasonably select, whether at such Grantor’s premises or ~~elsewhere~~elsewhere and (ii) to permit the Collateral Trustee to occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; (iii) prior to the disposition of the Collateral, the Collateral Trustee shall have the right to store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Collateral Trustee deems appropriate. The ~~Co-~~Collateral ~~Agents~~ Trustee shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Trustee and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.6, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Trustee of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Trustee account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral ~~Agent~~ Trustee or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before ~~such~~ a public sale or ~~other disposition~~the time after which any private sale is to be made. ~~No Co-~~The Collateral ~~Agent~~ Trustee shall not be obligated to make any sale ~~or other disposition~~ of any Collateral ~~if it shall determine not to do so,~~ regardless of ~~the fact that~~ notice of sale ~~or other disposition of such Collateral shall have~~ having been given. The ~~Co-~~Collateral ~~Agents may, without notice or publication,~~ Trustee may adjourn any public or private sale ~~or cause the same to be adjourned~~ from time to time by announcement at the time and place fixed ~~for sale~~therefore, and such ~~sale~~ Sale may, without further notice, be made at the time and place to which ~~the same~~ it was so adjourned. ~~Any public sale~~ The Collateral Trustee shall ~~be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If~~ have no obligation to marshal any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral AgentsCollateral. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Second Lien Collateral Agreement (Carmike Cinemas Inc), First Lien Guarantee and Collateral Agreement (Carmike Cinemas Inc)

Code and Other Remedies. ~~(a)~~ If an Event of Default pursuant to Section 601(i) of the Indenture shall occur and be continuing, the ~~Co-~~Note Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may (~~and at the direction of the Required Lenders shall~~but shall not be obligated to) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code (whether or not the Code applies to the affected Collateral) and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Note Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Company or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances (but shall not be obligated to), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Note Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Note Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Company, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Note Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.2, after deducting all reasonable and documented out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Note Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable and documented attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the Company then due and owing, in the order ~~set forth~~ of priority specified in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor5.2. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Company waives all claims, damages and demands it may acquire against ~~any Co-~~the Note Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Note Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. ~~No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so~~Notwithstanding the foregoing, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless ~~and until payment is finally received thereon by the Co-Collateral Agents. (b) If~~ an Event of Default ~~shall occur~~ pursuant to Section 601(i) of the Indenture has occurred and ~~be continuing, with respect to any Collateral consisting of Inventory~~continues, the ~~Co-~~Note Collateral ~~Agents may conduct one or more going out of business sales, in~~ Agent shall not take any action without the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property prior written consent of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations~~ Company (A) to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights payments in respect ~~thereof;~~ of Obligations or (~~iii~~B) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, foreclose on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or apply Collateral or proceeds thereof to payments of Obligations or any ~~portion thereof shall be treated as a sale thereof. The Co-~~other obligations; provided that the mere exercise of control over the Collateral ~~Agents shall be free to carry out~~ Account (without the application of any assets in such ~~sale pursuant to such agreement and no Grantor shall be entitled~~ Collateral Account to the ~~return of the Collateral~~ Obligations or to any ~~portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents~~ other obligations) shall ~~have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full~~not constitute a foreclosure hereunder. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Indenture (Ambac Financial Group Inc), Collateral Agreement (Ambac Financial Group Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made may constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s reasonable request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.06, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder~~. If~~ . (c) In the event of any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any ~~Collateral if it shall determine not to do so, regardless~~ of the ~~fact that notice~~ Trademarks, the goodwill of ~~sale or other disposition of~~ the business connected with and symbolized by any Trademarks subject to such ~~Collateral~~ Disposition shall ~~have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to~~ be ~~adjourned from time to time by announcement at the time and place fixed for sale~~included, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any ~~Collateral consisting of Inventory~~Intellectual Property Collateral, the Coapplicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-~~Collateral Agents may conduct one or more going out of business sales~~how and expertise, in and with records, documents and things embodying the ~~Co-Collateral Agents’ own right or by one or more agents~~ same, relating to the manufacture, distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of products or the provision of services relating to such ~~goods which constitute augmentations~~ Intellectual Property Collateral subject to ~~the Inventory (net of an allocable share of the costs~~ such disposition, and ~~expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or~~ such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutelyGrantor’s customer lists pertaining thereto, ~~free from any claim or right~~ subject to appropriate confidentiality undertakings on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any person receiving such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesproprietary information. (d) ~~If an Event of Default~~ The Collateral Agent shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required have no obligation to ~~remove~~ marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Pledge and Security Agreement (MacDermid Group Inc.), Pledge and Security Agreement (MacDermid Group Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing and subject to each applicable Intercreditor Agreement) collect, receive, appropriate and realize upon the ~~Collateral~~Pledged Stock, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the ~~Collateral~~ Pledged Stock or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the ~~Collateral~~ Pledged Stock so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of ~~any of~~ the ~~Collateral~~ Pledged Stock or in any way relating to the ~~Collateral~~ Pledged Stock or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.3 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Pledged Stock, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of ~~Collateral~~ the Pledged Stock shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Holding Pledge Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.)

Code and Other Remedies. (a) If Subject to the Intercreditor Agreements, if an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including the Bankruptcy Code, the Agent, as agent for and representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Secured Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Agent at such sale, such amount to be apportioned ratably to the ~~Co-Collateral Agents~~ Secured Obligations of the Secured Parties in accordance with their pro rata share of such Secured Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any ~~other Credit Party~~Grantor, and each Grantor hereby waives (to the ~~Co-~~extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ 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 ~~other Credit Party~~ sale may, ~~upon compliance with~~ without further notice, be made at the ~~terms~~ time and place to which it was so adjourned. The Agent may sell the Collateral without giving any warranties as to the Collateral. The Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor hereby waives any claims against the Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, ~~hold, retain~~ even if the Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located without any obligation to pay rent and take possession thereof with or without judicial process. The Agent shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds of any action taken by it pursuant to this Section 6.5, after deducting~~ Collateral. (b) The Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied or retained by the ~~payment~~ Agent in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section 6.4~~, and only~~ . Only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any Grantor. If the Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Agent. In the event the purchaser fails to pay for the Collateral, the Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default shall occur and be continuing, with respect to~~ any ~~Collateral consisting~~ Disposition of ~~Accounts~~any of the Intellectual Property, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage goodwill of the ~~goods giving rise~~ business connected with and symbolized by any Trademarks subject to such ~~Accounts~~ Disposition shall be included, and the applicable Grantor shall supply the Agent or ~~securing~~ its designee with such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the exploitation of such Intellectual Property, including the manufacture, distribution, advertising and sale of products or the provision of services under such Intellectual Property, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) ~~If an Event~~ For the purpose of ~~Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance,~~ enabling the ~~Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required~~ Agent to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise ~~of the Co-Collateral Agents’~~ rights and remedies ~~hereunder. (e) For purposes of~~ under this Section ~~6.5~~6.5 (including in order to take possession of, ~~a written and fully executed agreement~~ collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the ~~Collateral or any portion thereof~~ Agent shall be ~~treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be~~ lawfully entitled to ~~the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into~~ exercise such ~~an agreement all Events of Default shall have been remedied~~ rights and ~~the Obligations paid in full. (f) To the extent permitted by applicable law~~remedies, each Grantor hereby ~~waives all~~ grants to the Agent, for the benefit of the Secured Parties, (i) an irrevocable, nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of ~~redemption, stay, valuation and appraisal which~~ such Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, license, sublicense, and otherwise exploit any and all Intellectual Property now ~~has~~ owned or ~~may at any time in the future have under any rule of law or statute now existing~~ held or hereafter ~~enacted~~acquired or held by such Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof) and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by such Grantor.

Appears in 2 contracts

Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Trustee, on behalf of the ~~Credit~~ Secured Parties, may ~~(and~~ exercise, acting at the direction of the Secured Representative for the Required ~~Lenders shall) exercise~~Secured Parties, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other ~~applicable law~~Applicable Law. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and~~ in such circumstances, acting at the direction of the Secured Representative for the Required ~~Lenders shall) in such circumstances~~ Secured Parties, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral ~~Agent~~ Trustee or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Trustee or any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Trustee’s request, acting at the direction of the Secured Representative for the Required Secured Parties, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Trustee at places which the ~~Co-~~Collateral ~~Agents~~ Trustee shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Trustee shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Trustee and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in ~~the~~ such order ~~set forth~~ as is provided in Section ~~6.4~~5.5, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Trustee of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Trustee account for the surplus, if any, to any Grantor. To the extent permitted by ~~applicable law~~Applicable Law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral ~~Agent~~ Trustee or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Credit Agreement (Mirant Corp), Credit Agreement (Rri Energy Inc)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to ~~or upon any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing and subject to each applicable Intercreditor Agreement) collect, receive, appropriate and realize upon the ~~Collateral~~Pledged Stock, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the ~~Collateral~~ Pledged Stock or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the ~~Collateral~~ Pledged Stock so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of ~~any of~~ the ~~Collateral~~ Pledged Stock or in any way relating to the ~~Collateral~~ Pledged Stock or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.3 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Pledged Stock, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of ~~Collateral~~ the Pledged Stock shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Pledge Agreement (Hd Supply, Inc.), Abl Credit Agreement (Hd Supply, Inc.)

Appears in 2 contracts

Samples: Security Agreement, Security Agreement (Sears Holdings Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the right ~~upon any such public sale or sales, and,~~ to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party, in the order ~~set forth~~ of priority specified in Section ~~6.4~~6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, ~~need~~ shall the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any ~~Grantor~~Granting Party. To the extent permitted by applicable law, each ~~Grantor~~ Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder, except to the extent arising as a result of the gross negligence or willful misconduct of the Collateral Agent or such other Secured Party. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Sirva Inc), Guarantee and Collateral Agreement (Sirva Inc)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing) collect, receive, appropriate and realize upon the ~~Collateral~~Pledged Stock, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the ~~Collateral~~ Pledged Stock or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the ~~Collateral~~ Pledged Stock so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of ~~any of~~ the ~~Collateral~~ Pledged Stock or in any way relating to the ~~Collateral~~ Pledged Stock or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.3 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Pledged Stock, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of ~~Collateral~~ the Pledged Stock shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Holding Pledge Agreement (HSI IP, Inc.), Pledge Agreement (HSI IP, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may (~~and at the direction of the Required Lenders shall~~but shall not be obligated to) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Agent may, but shall have no obligation to, store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Collateral Agent, as representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the Majority Holders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Secured Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Collateral Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Secured Obligations of the Secured Parties in accordance with their pro rata share of such Secured Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Collateral ~~Agents~~ Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may, but shall not be obligated to, sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Collateral ~~Agents or~~ Agent arising by reason of the fact that the price at which any Collateral may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall ~~apply~~ have the ~~net proceeds~~ right, but not the obligation, to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Collateral Agent shall have no obligation to marshal any of ~~any action taken by it pursuant to this Section 6.5, after deducting~~ the Collateral. (b) The Collateral Agent shall deduct from such Proceeds all ~~reasonable~~ costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied or retained by the ~~payment~~ Collateral Agent in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.4. Only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may, but shall not be obligated to, resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default shall occur and be continuing, with respect to~~ any ~~Collateral consisting~~ Disposition of ~~Accounts~~any of the Intellectual Property, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage goodwill of the ~~goods giving rise~~ business connected with and symbolized by any Trademarks subject to such ~~Accounts~~ Disposition shall be included, and the applicable Grantor shall supply the Collateral Agent or ~~securing~~ its designee with such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the exploitation of such Intellectual Property, including the manufacture, distribution, advertising and sale of products or the provision of services under such Intellectual Property, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) ~~If an Event~~ For the purpose of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of enabling the Collateral ~~from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable~~ Agent to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise ~~of the Co-Collateral Agents’~~ rights and remedies ~~hereunder. (e) For purposes of~~ under this Section ~~6.5~~5.5 (including in order to take possession of, ~~a written and fully executed agreement~~ collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the Collateral ~~or any portion thereof~~ Agent shall be ~~treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be~~ lawfully entitled to ~~the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into~~ exercise such ~~an agreement all Events of Default shall have been remedied~~ rights and ~~the Obligations paid in full. (f) To the extent permitted by applicable law~~remedies, each Grantor hereby ~~waives all~~ grants to the Collateral Agent, for the benefit of the Secured Parties, (i) an irrevocable, nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of ~~redemption, stay, valuation and appraisal which~~ such Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, license, sublicense, and otherwise exploit any and all Intellectual Property now ~~has~~ owned or ~~may at any time in the future have under any rule of law or statute now existing~~ held or hereafter ~~enacted~~acquired or held by such Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof) and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by such Grantor.

Appears in 2 contracts

Samples: Indenture (Marti Technologies, Inc.), Pledge and Security Agreement (Marti Technologies, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, ~~defenses~~defenses (other than the defense of payment or performance of the Discharge of Obligations), advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Grantor of any cash collateral arising in respect of the Collateral on such terms as the Collateral Agent deems reasonable, take or retake control or possession of the Collateral and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and ~~deliver~~ deliver, or acquire by credit bid on behalf of the Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk, it being understood that a Secured Party will be subject to the commercially reasonable requirements under the UCC with respect to any disposition of Collateral. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. To the fullest extent permitted by applicable law, each purchaser at any such sale shall hold the property sold to it absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. To the fullest extent permitted by applicable law, this procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the ~~purchase price~~ Collateral Agent or any Secured Party arising out of the ~~amount~~ exercise by them of any ~~claim then due and payable from any Grantor on account~~ of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefortheir rights hereunder. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, if an Event of Default has occurred and is continuing, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere~~. The Co-~~. (b) Subject to the Intercreditor Agreements, the Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of the Collateral Agent of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations,~~ Obligations in ~~the order set forth in~~ accordance with Section ~~6.4,~~ 6.5 hereof and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (GNC Holdings, Inc.), Guarantee and Collateral Agreement (GNC Holdings, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, ~~the Co-Collateral Agents, on behalf of the Credit Parties~~Secured Party, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, ~~the Co-Collateral Agents~~Secured Party, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ Pledgor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in Pledgor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount of~~ Collateral sold at any ~~claim then due~~ such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, Secured Party shall be entitled to credit bid and ~~payable from~~ use and apply the Secured Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by Secured Party at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of Pledgor, and Pledgor hereby waives (to the ~~Co-~~extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to 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. Secured Party shall not be obligated to make any sale of Collateral ~~Agents~~ regardless of notice of sale having been given. Secured Party 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. Secured Party may sell the Collateral without giving any warranties as to the Collateral. Secured Party may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Pledgor agrees that it would not be commercially unreasonable for Secured Party to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Pledgor hereby waives any claims against Secured Party arising by reason of the ~~Co-~~fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if Secured Party accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. ~~Each Grantor~~ Pledgor further agrees, at ~~the Co-Collateral Agents’~~ Secured Party’s request, to assemble the Collateral and make it available to ~~the Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Secured Party at places which ~~the Co-Collateral Agents~~ Secured Party shall reasonably select, whether at ~~such Grantor~~Pledgor’s premises or elsewhere. ~~The Co-~~Secured Party shall have the right to enter onto the property where any Collateral ~~Agents~~ is located without any obligation to pay rent and take possession thereof with or without judicial process. Secured Party shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds of any action taken by it pursuant to this Section 6.5, after deducting~~ Collateral. (b) Secured Party shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of ~~the Co-Collateral Agents and the other Credit Parties~~ Secured Party hereunder, including, without limitation, reasonable attorneys’ fees and disbursements~~, to the payment~~ . Any net Proceeds remaining after such deductions shall be applied or retained by Secured Party in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.2. Only after such application and after the payment by ~~the Co-Collateral Agents~~ Secured Party of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need ~~the Co-Collateral Agents~~ Secured Party account for the surplus, if any, to Pledgor. If Secured Party sells any ~~Grantor~~of the Collateral upon credit, Pledgor will be credited only with payments actually made by the purchaser and received by Secured Party. In the event the purchaser fails to pay for the Collateral, Secured Party may resell the Collateral and Pledgor shall be credited with proceeds of the sale. To the extent permitted by applicable law, ~~each Grantor~~ Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.), Limited Liability Company Agreement (Hcp, Inc.)

Code and Other Remedies. ~~(a)~~ If ~~an Event~~ a Notice of ~~Default shall occur and be continuing~~Acceleration is in effect, the ~~Co-~~Collateral ~~Agents~~Trustee, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other ~~applicable law~~Applicable Laws. Without limiting the generality of the foregoing, if a Notice of Acceleration is in effect, the ~~Co-~~Collateral ~~Agents~~Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice referred to below or otherwise required by ~~law referred to below~~law) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~waived~~waived to the extent not prohibited by law), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ forthwith, without notice to the Company and the relevant Grantor, collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral ~~Agent or any Credit Party~~ Trustee or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents or any other Credit Party~~ Trustee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to bid for or purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and ~~released~~released to the extent not prohibited by Applicable Laws, and may ~~credit against the purchase price the amount of~~ make payment on account thereof by using any claim then due and payable ~~from any Grantor on account of the Obligations owed~~ to the ~~Co-~~Secured Parties by such Grantor as a credit against the purchase price (pursuant to procedures established by the Collateral ~~Agents or any other Credit Party~~Trustee), and the ~~Co-~~Collateral ~~Agents or such other Credit Party~~ Trustee may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Trustee’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Trustee at places which the ~~Co-~~Collateral ~~Agents~~ Trustee shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Trustee shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Trustee and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order provided for in the ~~order set forth in Section 6.4~~Collateral Trust Agreement, ~~and~~ and, subject to any Applicable Laws, only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Trustee of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Trustee account for the surplus, if any, to any Grantor. To the extent permitted by ~~applicable law~~Applicable Laws, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral ~~Agent~~ Trustee or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Security Agreement (American Capital, LTD), Security Agreement (American Capital, LTD)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Mortgage Notes Indenture Trustee, on behalf of the ~~Credit~~ Secured Parties, may exercise (~~and at~~ subject to obtaining any required approvals from any Governmental Authorities that may not be waived by the ~~direction of the Required Lenders shall) exercise~~Grantors), in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Mortgage Notes Indenture Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Mortgage Notes Indenture Trustee shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Mortgage Notes Indenture Trustee 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. The Mortgage Notes Indenture Trustee may sell the Collateral without giving any warranties as to the Collateral. The Mortgage Notes Indenture Trustee may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Mortgage Notes Indenture Trustee to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Mortgage Notes Indenture Trustee arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Mortgage Notes Indenture Trustee accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Mortgage Notes Indenture Trustee's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Mortgage Notes Indenture Trustee at places which the ~~Co-Collateral Agents~~ Mortgage Notes Indenture Trustee shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-Collateral Agents~~ Mortgage Notes Indenture Trustee shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.7, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Mortgage Notes Indenture Trustee may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Mortgage Notes Indenture Trustee of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Mortgage Notes Indenture Trustee account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event~~ In the event of ~~Default~~ any sale or transfer of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such sale or transfer shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Mortgage Notes Indenture Trustee or its designee with such Grantor's know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any ~~Collateral consisting of Inventory~~Intellectual Property subject to such sale or transfer, and such Grantor's customer lists and other records and documents relating to such Intellectual Property and to the ~~Co-Collateral Agents may conduct one or more going out of business sales~~manufacture, ~~in the Co-Collateral Agents’ own right or by one or more agents~~ distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (Wynn Resorts LTD), Guarantee and Collateral Agreement (Wynn Las Vegas LLC)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least 10 days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral, and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any Disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such Disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ Disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Credit Agreement (Ign Entertainment Inc)

Appears in 1 contract

Samples: Security Agreement (Micron Technology Inc)

Code and Other Remedies. ~~(a)~~ If ~~an Event~~ a Notice of ~~Default shall occur and be continuing~~Acceleration is in effect, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other ~~applicable law~~Applicable Laws. Without limiting the generality of the foregoing, if a Notice of Acceleration is in effect, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice referred to below or otherwise required by ~~law referred to below~~law) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~waived~~waived to the extent not prohibited by law), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ forthwith, without notice to the Company and the relevant Grantor, collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent ~~or any Credit Party~~ or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents or any other Credit Party~~ Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to bid for or purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and ~~released~~released to the extent not prohibited by Applicable Laws, and may ~~credit against the purchase price the amount of~~ make payment on account thereof by using any claim then due and payable ~~from any Grantor on account of the Obligations owed~~ to the ~~Co-~~Secured Parties by such Grantor as a credit against the purchase price (pursuant to procedures established by the Collateral ~~Agents or any other Credit Party~~Agent), and the ~~Co-~~Collateral ~~Agents or such other Credit Party~~ Agent may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable and documented attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order provided for in the ~~order set forth in Section 6.4~~Collateral Agency Agreement, ~~and~~ and, subject to any Applicable Laws, only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by ~~applicable law~~Applicable Laws, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Security Agreement (American Capital, LTD)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may exercise (~~and at the direction of the Required Lenders shall) exercise~~subject to obtaining any required approvals from any Governmental Authorities), in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and ~~released~~released to the fullest extent permitted by applicable law. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of the Collateral or any part thereof regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral or any part thereof. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent or Trustee arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral or any part thereof and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in accordance with Section 7.10 of the ~~order set forth in Section 6.4~~Indenture, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any ~~Collateral consisting of Inventory~~Intellectual Property subject to such disposition, and such Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the ~~Co-Collateral Agents may conduct one or more going out of business sales~~manufacture, ~~in the Co-Collateral Agents’ own right or by one or more agents~~ distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Pledge and Security Agreement (FiberTower CORP)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, subject to the ~~Co-Collateral Agents~~terms of the Loan Documents and Section 14.17 hereof: (a) The Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ the Secured Parties in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Pledged Collateral) and all rights under any other applicable ~~law.~~ law or in equity. (b) Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgors or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Pledged Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. . (c) Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Pledged Collateral so ~~sold~~sold or to become the licensor of all or any such Pledged Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgors, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price ~~the amount of any claim then due and payable from any Grantor on account~~ for all or a portion of the ~~Obligations owed to the Co-~~Pledged Collateral ~~Agents or~~ sold at any ~~other Credit Party, and the Co-Collateral Agents or~~ such ~~other Credit Party may, upon compliance~~ sale made in accordance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises UCC or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other ~~Credit Parties hereunder~~applicable laws, including, without limitation, ~~reasonable attorneys’ fees~~ the Debtor Relief Laws (as defined in the Credit Agreement), the Administrative Agent, as agent for and ~~disbursements, to the payment in whole or in part~~ representative of the ~~Obligations~~Secured Parties (but not any Secured Party or Secured Parties in its or their respective individual capacities unless the requisite percentage of holders under the applicable Loan Document shall otherwise agree in writing), in shall be entitled to credit bid and use and apply the ~~order set forth in Section 6.4, and only after such application and after~~ Obligations (or any portion thereof) as a credit on account of the ~~payment~~ purchase price for any Pledged Collateral payable by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Administrative Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, ~~may augment~~ such amount to be apportioned ratably to the ~~Inventory with other goods (all of which other goods shall remain the sole property~~ Obligations of the ~~Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale~~ Secured Parties in accordance with their pro rata share of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest thereinObligations. Each purchaser at any such ~~going out of business~~ sale shall hold the property sold ~~absolutely,~~ absolutely free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupyeach Pledgor, and ~~use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required~~ such Pledgor hereby waive (to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law~~, each Grantor hereby waives~~ ) all rights of redemption, ~~stay, valuation and~~ stay and/or appraisal which ~~such Grantor~~ it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. (d) Each Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such 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 Administrative Agent shall not be obligated to make any sale of Pledged 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Pledged Collateral without giving any warranties as to the Pledged Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Pledged Collateral. Each Pledgor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Pledged Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Pledged Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Pledgor hereby waives any claims against the Administrative Agent arising by reason of the fact that the price at which any Pledged Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Administrative Agent accepts the first offer received and does not offer such Pledged Collateral to more than one offeree. Each Pledgor further agrees, at the Administrative Agent’s request, to assemble the Pledged Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at such Pledgor’s premises or elsewhere. The Administrative Agent shall have the right to enter onto the property where any Pledged Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Administrative Agent shall have no obligation to marshal any of the Pledged Collateral. (e) Subject to Section 14.17 hereof, the Administrative Agent shall deduct from any Proceeds received in respect of the Pledged Collateral all reasonable costs and expenses of every kind incurred in connection with the exercise of its rights and remedies against the Pledged Collateral or incidental to the care or safekeeping of any of the Pledged Collateral or in any way relating to the Pledged Collateral or the rights of the Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements. Any net Proceeds remaining after such deductions shall be applied or retained by the Administrative Agent in accordance with Section 11.2. Only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a) of the UCC, need the Administrative Agent account for the surplus, if any, to the Pledgors. If the Administrative Agent sells any of the Pledged Collateral upon credit, the Pledgors will be credited only with payments actually made by the purchaser and received by the Administrative Agent. In the event the purchaser fails to pay for the Pledged Collateral, the Administrative Agent may resell the Pledged Collateral and the Pledgors shall be credited with proceeds of the sale. To the extent permitted by applicable law, the Pledgors waives all claims, damages and demands it may acquire against the Administrative Agent arising out of the exercise by it of any rights hereunder.

Appears in 1 contract

Samples: First Lien Credit Agreement (Liberty Global PLC)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Domestic Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances ~~forthwith~~ collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Domestic Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such ~~going out of business~~ sale shall hold the property sold ~~absolutely,~~ absolutely free from any claim or right on the part of any Domestic Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and ~~use any premises owned or occupied by~~ each ~~Grantor. The Co-Collateral Agents shall not be required~~ Domestic Grantor hereby waives (to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law~~, each Grantor hereby waives~~ ) all rights of redemption, ~~stay, valuation and~~ stay and/or appraisal which ~~such Grantor~~ it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Domestic Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days' notice to such Domestic Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Domestic Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable law, each Domestic Grantor hereby waives any claims against the Administrative Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Domestic Grantor further agrees, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at such Domestic Grantor’s premises or elsewhere. To the extent permitted by applicable law, and so long as an Event of Default is continuing, the Administrative Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the proceeds of any action taken by it pursuant to this Section 5.6, in accordance with Section 8.03 of the Credit Agreement. If the Administrative Agent sells any of the Collateral upon credit, the Domestic Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Domestic Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Domestic Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by any Secured Party of any rights hereunder. (c) In the event of any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall be included, and the applicable Domestic Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Administrative Agent or its designee with such Domestic Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Intellectual Property subject to such disposition, and such Domestic Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of such products and services. (d) For the purpose of enabling the Administrative Agent, during the continuance of an Event of Default, to exercise rights and remedies under Article V hereof, each Domestic Grantor hereby grants to the Administrative Agent, to the extent assignable, a non-exclusive license (exercisable only during the continuance of an Event of Default) to use, assign, license or sublicense any of the Intellectual Property constituting Collateral now owned or hereafter acquired by such Domestic Grantor, wherever the same may be located. Such license shall include access to all media in which any of the licensed items constituting Collateral may be recorded or stored.

Appears in 1 contract

Samples: Credit Agreement (BWX Technologies, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Third Lien Collateral ~~Agents~~Agent, on behalf of itself, the ~~Credit~~ Administrative Agent and the other Third Lien Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, to the ~~Co-~~maximum extent permitted under applicable law, the Third Lien Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below or notices otherwise required by the Credit Agreement) to or upon any ~~Grantor~~ Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived, to the maximum extent permitted under applicable law unless otherwise provided in the Credit Agreement), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to pre-existing rights and licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Administrative Agent, the Third Lien Collateral Agent or any ~~Credit~~ other Third Lien Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold~~ The Administrative Agent, the ~~property sold absolutely, free from any claim or right on the part of any Grantor. The Co-~~Third Lien Collateral ~~Agents~~ Agent or any other ~~Credit~~ Third Lien Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the LEGAL_US_E # 148179738.4 whole or any part of the Collateral so sold, free of any right or equity of redemption, ~~stay, valuation~~ stay or appraisal ~~on the part of~~ in any ~~Grantor~~Pledgor, which ~~right~~ rights or ~~equity is~~ equities are hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Pledgor further agrees, at the ~~Co-~~Third Lien Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Third Lien Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Third Lien Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Pledgor’s premises or elsewhere. The ~~Co-~~Third Lien Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.4, after deducting all reasonable costs and expenses of every kind actually incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Administrative Agent, the Third Lien Collateral ~~Agents~~ Agent and the other ~~Credit~~ Third Lien Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~5.3, and only after such application and after the payment by the ~~Co-~~Third Lien Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-~~Third Lien Collateral ~~Agents~~ Agent account for the surplus, if any, to any ~~Grantor~~Pledgor. To Notwithstanding the ~~extent permitted by applicable law~~foregoing, ~~each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of~~ the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Third Lien Collateral Agent shall ~~be obligated~~ give each applicable Pledgor not less than 10 days’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Third Lien Collateral Agent’s intention to make any sale ~~or other disposition~~ of ~~any Collateral if it~~ Collateral. Such notice, in the case of a public sale, shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at state the time and place ~~fixed~~ for ~~sale, and~~ such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business salesand, in the ~~Co-Collateral Agents’ own right~~ case of a sale at a broker’s board or ~~by one~~ on a securities exchange, shall state the board or ~~more agents~~ exchange at which such sale is to be made and ~~contractors. Such sale(s) may be conducted upon any premises owned, leased~~the day on which the Collateral, or ~~occupied by any Grantor. The Co-Collateral Agents and any~~ portion thereof, will first be offered for sale at such ~~agent~~ board or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor)exchange. Any ~~amounts realized from the sale of such goods which constitute augmentations~~ remedies provided in this Section 5.4 shall be subject to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any GrantorBrandCo Intercreditor Agreement. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Third Lien Stock Pledge Agreement (Revlon Inc /De/)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Special Purpose Financing) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents~~ Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any~~ redemption in such Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to the terms of any documentation governing any Special Purpose Financing), to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Grantor then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any~~ such Grantor. To the extent permitted by applicable law, ~~each~~ (i) such Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Notes Collateral Agreement (US Foods Holding Corp.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-Collateral Agents~~extent permitted by applicable law, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), ~~may (~~may, after the occurrence and at during the ~~direction~~ continuance of ~~the Required Lenders shall) in such circumstances~~ an Event of Default, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, after the occurrence and during the continuance of an Event of Default, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.5, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights ~~hereunder~~hereunder (excluding claims, damages and demands to the extent such claims, damages and demands are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or such Secured Party, as the case may be). If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Credit Agreement (National CineMedia, Inc.)

Code and Other Remedies. ~~(a) If~~ Subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without prior demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any prior notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, subject to the Intercreditor Agreement, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser~~ The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of remedies in the proceeding sentence, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of such ~~sale shall hold~~ remedies or the ~~property sold absolutely, free from any claim or right on the part of any Grantor~~Agent’s rights hereunder. The ~~Co-Collateral Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. ~~The Co-Collateral Agents~~ Subject to the Intercreditor Agreement, the Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.05, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in ~~the~~ such order ~~set forth~~ as is provided in Section ~~6.4~~5.05 of the Indenture, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any prior notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. ~~No Co-Collateral~~ The Agent shall ~~be obligated~~ incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to ~~make~~ this Article 6 conducted in accordance with the requirements of applicable laws and provided such sale shall not have resulted from the gross negligence, willful misconduct or fraud of the Agent. Each Grantor hereby waives any ~~sale or~~ claims against the Agent and the other ~~disposition of any Collateral if it shall determine not to do so, regardless~~ Secured Parties arising by reason of the fact that ~~notice of~~ the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or ~~other disposition~~ was less than the aggregate amount of the Secured Obligations, even if the Agent accepts the first offer received and does not offer the Collateral to more than one offeree, provided that such ~~Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or~~ private sale ~~or cause the same to be adjourned from time to time by announcement at the time~~ is conducted in accordance with applicable laws and ~~place fixed for sale, and such~~ this Agreement. Each Grantor hereby agrees that in respect of any sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of ~~such sale. If~~ any of the Collateral pursuant to the terms hereof, the Agent is ~~sold, leased~~hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable laws, or ~~otherwise disposed~~ in order to obtain any required approval of by the ~~Co-Collateral Agents on credit,~~ sale or of the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied purchaser by any ~~Grantor. The Co-Collateral Agents and any such agent~~ governmental authority or ~~contractor~~official, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the ~~Co-Collateral Agents~~ Agent be liable or accountable to any Grantor for ~~use or occupancy~~ any discount allowed by ~~the Co-Collateral Agents~~ reason of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that ~~after the Co-~~such Collateral ~~Agents shall have entered into~~ is sold in compliance with any such ~~an agreement all Events of Default shall have been remedied and the Obligations paid in full~~limitation or restriction. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Second Lien Security Agreement (Hovnanian Enterprises Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made may constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s reasonable request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder~~. If~~ . (c) In the event of any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any ~~Collateral if it shall determine not to do so, regardless~~ of the ~~fact that notice~~ Trademarks, the goodwill of ~~sale or other disposition of~~ the business connected with and symbolized by any Trademarks subject to such ~~Collateral~~ Disposition shall ~~have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to~~ be ~~adjourned from time to time by announcement at the time and place fixed for sale~~included, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any ~~Collateral consisting of Inventory~~Intellectual Property Collateral, the Coapplicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-~~Collateral Agents may conduct one or more going out of business sales~~how and expertise, in and with records, documents and things embodying the ~~Co-Collateral Agents’ own right or by one or more agents~~ same, relating to the manufacture, distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of products or the provision of services relating to such ~~goods which constitute augmentations~~ Intellectual Property Collateral subject to ~~the Inventory (net of an allocable share of the costs~~ such disposition, and ~~expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or~~ such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutelyGrantor’s customer lists pertaining thereto, ~~free from any claim or right~~ subject to appropriate confidentiality undertakings on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any person receiving such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesproprietary information. (d) ~~If an Event of Default~~ The Collateral Agent shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required have no obligation to ~~remove~~ marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Cheniere Energy Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC~~ Code or any other applicable law. Without limiting the generality of the foregoing, to the ~~Co-Collateral Agents~~extent permitted by applicable law, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith (subject to the terms of any documentation governing any Permitted Receivables Transaction) collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any other ~~Credit~~ Secured Party shall have the ~~right upon any such public sale or sales, and~~right, to the extent permitted by law, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-Collateral Agents’ request~~Administrative Agent’s request (subject to the terms of any documentation governing any Permitted Receivables Transaction), to assemble the Security Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~subsection 6.5 above, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Administrative Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If Solely in connection with Collateral located in the State of Louisiana, for purposes of executory process under applicable Louisiana law, each Granting Party hereby acknowledges the indebtedness owed under the Obligations of such Granting Party, CONFESSES JUDGMENT thereon and consents that judgment be rendered and signed, whether during the court’s term or during vacation, in favor of the Administrative Agent, for the benefit of the Secured Parties, for the full amount of such Obligations, including but not limited to, amounts due and payable under the Credit Agreement, any Notes or any of the other Loan Documents in principal, interest, and attorneys’ fees, together with all charges and expenses whatsoever pursuant to this Agreement and the Credit Agreement. Upon the occurrence and during the continuance of an Event of ~~Default shall occur~~ Default, and in addition to all of its rights, powers and remedies under this Agreement and applicable law, the Administrative Agent may, at its option, cause all or any part of the Security Collateral of such Granting Party to be ~~continuing~~seized and sold under executory process or under writ of fieri facias issued in execution of an ordinary judgment obtained upon such Obligations, without appraisement to the highest bidder, for cash or under such terms as the Administrative Agent deems acceptable. Each Granting Party hereby waives all and every appraisement of the Administrative Agent and waives and renounces the benefit of appraisement and the benefit of all laws relative to the appraisement of the Security Collateral of such Granting Party seized and sold under executory or other legal process. Each Granting Party agrees to waive, and does hereby specifically waive: (i) the benefit of appraisement provided for in Articles 2332, 2336, 2723 and 2724, Louisiana Code of Civil Procedure, and all other laws conferring such benefits; (ii) the demand and three (3) days delay accorded by Articles 2639 and 2721, Louisiana Code of Civil Procedure; (iii) the notice of seizure required by Articles 2293 and 2721, Louisiana Code of Civil Procedure; (iv) the three (3) days delay provided by Articles 2331 and 2722, Louisiana Code of Civil Procedure; (v) the benefit of the other provisions of Articles 2331, 2722 and 2723, Louisiana Code of Civil Procedure; (vi) the benefit of the provisions of any other articles of the Louisiana Code of Civil Procedure relating to the foreclosure of movable or immovable property not specifically mentioned above; and (vii) all rights of division and discussion with respect to ~~any Collateral consisting~~ the Obligations of ~~Inventory~~such Granting Party. In the event the Administrative Agent elects, at its option, to enter suit via ordinaria on the ~~Co-Collateral Agents may conduct one or more going out~~ Obligations of ~~business sales~~such Granting Party, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations addition to the ~~Inventory (net~~ foregoing confession of ~~an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or~~ judgment, such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutelyGranting Party hereby waives citation, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and ~~with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy,~~ legal delays and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages hereby consents that judgment for the ~~Grantors~~unpaid principal due on such Obligations, together with interest, attorneys’ ~~employees~~ fees, costs and ~~utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights~~ other charges that may be due on such Obligations, be rendered and ~~remedies hereunder~~signed immediately. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Graphic Packaging Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~Law or in equity. ~~Without~~ If an Event of Default shall occur and be continuing, without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law~~ Law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale~~ If an Event of Default shall ~~hold the property sold absolutely~~occur and be continuing, ~~free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by ~~law~~Law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the New York UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Administrative Agent, as agent for and representative of the Secured Parties (but not any ~~claim then due~~ Secured Party or Secured Parties in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Administrative Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Obligations of the Secured Parties in accordance with their pro rata share of such Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by Law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Administrative Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale~~, hold, retain and dispose of such property without further accountability to any Grantor therefor~~. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. For the avoidance of doubt, all rights and remedies set forth in this Section 6.6(a) are exercisable by the Administrative Agent solely during the occurrence and continuance of an Event of Default. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6 hereof, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To If the ~~extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral~~ Administrative Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If sells any of the Collateral ~~is sold, leased, or otherwise disposed of by the Co-Collateral Agents on~~ upon credit, the ~~Obligations shall not~~ Grantor will be ~~deemed to have been reduced as a result thereof unless and until payment is finally received thereon~~ credited only with payments actually made by the ~~Co-Collateral Agents. (b) If an Event~~ purchaser and received by the Administrative Agent and applied to indebtedness of ~~Default shall occur and be continuing, with respect~~ the purchaser. In the event the purchaser fails to ~~any Collateral consisting of Inventory~~pay for the Collateral, the ~~Co-~~Administrative Agent may resell the Collateral ~~Agents may conduct one or more going out of business sales, in~~ and the ~~Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may~~ Grantor shall be ~~conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction~~ credited with ~~any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property~~ proceeds of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorsale. (c) ~~If an Event~~ In the event of ~~Default shall occur and be continuing, with respect to~~ any ~~Collateral consisting~~ Disposition of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the ~~Collateral from any such premises upon~~ Grantor Intellectual Property, the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise goodwill of the ~~Co-Collateral Agents’ rights~~ business connected with and ~~remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement~~ symbolized by any Trademarks subject to ~~purchase the Collateral or any portion thereof~~ such Disposition shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in fullincluded. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Credit Agreement (Healthequity, Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, ~~the Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other ~~applicable law~~Applicable Law or in equity. Without limiting the generality of the foregoing, ~~the Co-Collateral Agents~~Administrative Agent, while an Event of Default has occurred and is continuing, without ~~demand of performance or other~~ demand, performance, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such ~~going out of business~~ sale shall hold the ~~property~~ Property sold ~~absolutely,~~ absolutely free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and ~~use any premises owned or occupied by~~ each ~~Grantor. The Co-Collateral Agents shall not be required~~ Grantor hereby waives (to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by ~~applicable law, each Grantor hereby waives~~ Applicable Law) all rights of redemption, ~~stay, valuation and~~ stay and/or appraisal which ~~such Grantor~~ it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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. Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Administrative 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. Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. Administrative Agent may specifically disclaim or modify any warranties of title or the like. To the extent permitted by Applicable Law, each Grantor hereby waives any claims against Administrative Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees, at Administrative Agent’s request, to assemble its Collateral and make it available to Administrative Agent at places which Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. Administrative Agent shall have the right to enter onto the Property where any Collateral is located and take possession thereof with or without judicial process and shall be entitled to use or employ , without charge, all items of Intellectual Property used or employed by any Grantor. (b) Administrative Agent shall apply the net proceeds of any action taken by it pursuant to Section 5.7 of the Credit Agreement. If Administrative Agent sells any of the Collateral upon credit, the applicable Grantor will be credited only with payments actually made by the purchaser and received by Administrative Agent. In the event the purchaser fails to pay for the Collateral, Administrative Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by Applicable Law, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by them of any rights hereunder.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (HollyFrontier Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit Parties~~Lenders, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Pledgor Obligations, all rights and remedies of a secured party under the Uniform Commercial Code as from time to time in effect in the State of New York ~~UCC~~ (the “NY UCC”) or any other applicable law. Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Cash Account Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Cash Account Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may reasonably deem advisable and at such prices as it may reasonably deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Agent or any ~~other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Cash Account Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Pledgor, which right or equity is hereby waived and ~~released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed~~ released (to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhereextent permitted by law). The ~~Co-Collateral Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.4, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Cash Account Collateral or in any way relating to the Cash Account Collateral or the rights of the ~~Co-Collateral Agents~~ Agent and the ~~other Credit Parties~~ Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Pledgor Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4~~6.3, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York~~ NY UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~the Pledgor. To the extent permitted by applicable law, ~~each Grantor~~ the Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Agent or any ~~other Credit Party~~ Lender arising out of the exercise by ~~them~~ the Agent or such Lender of any rights hereunder. If any written notice of a proposed sale or other disposition of Cash Account Collateral shall be required by law, such written notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Pledge Agreement (155 East Tropicana, LLC)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit~~ Note Secured Parties, ~~may (and at~~ may, subject to the ~~direction of the Required Lenders shall)~~ Intercreditor Agreement, exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a ~~secured party~~ Note Secured Party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Note Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Note Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, the Agent, as agent for and representative of the Note Secured Parties (but not any ~~claim then due~~ Note Secured Party or Note Secured Parties in its or their respective individual capacities unless the Requisite Holders shall otherwise agree in writing), shall be entitled to credit bid and ~~payable from~~ use and apply the Secured Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Secured Obligations of the Note Secured Parties in accordance with their pro rata share of such Secured Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ 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. The Agent may sell the Collateral without giving any warranties as to the Collateral. The Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Agent arising by reason of the fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located without any obligation to pay rent and take possession thereof with or without judicial process. The Agent shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds of any action taken by it pursuant to this Section 6.5~~Collateral. (b) The Agent shall deduct from such Proceeds all documented fees, ~~after deducting all reasonable costs~~ costs, expenses and ~~expenses~~ disbursements of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Note Secured Parties hereunder, including, without limitation, ~~reasonable attorneys’ fees~~ documented fees, out of pocket costs, expenses and ~~disbursements, to~~ disbursements of counsel. Any net Proceeds remaining after such deductions shall be applied or retained by the ~~payment~~ Agent in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.4. Only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any Grantor. If the Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Agent. In the event the purchaser fails to pay for the Collateral, the Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Note Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If In the event of any Disposition of any of the Intellectual Property by the Agent after the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing, with respect to any Collateral consisting of Accounts~~Default, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage goodwill of the ~~goods giving rise~~ business connected with and symbolized by any Trademarks subject to such ~~Accounts~~ Disposition shall be included, and the applicable Grantor shall supply the Agent or ~~securing~~ its designee with such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the exploitation of such Intellectual Property, including the manufacture, distribution, advertising and sale of products or the provision of services under such Intellectual Property, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) ~~If an Event~~ For the purpose of ~~Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance,~~ enabling the ~~Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required~~ Agent to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise ~~of the Co-Collateral Agents’~~ rights and remedies ~~hereunder. (e) For purposes of~~ under this Section ~~6.5~~5.5 (including in order to take possession of, ~~a written and fully executed agreement~~ collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the ~~Collateral or any portion thereof~~ Agent shall be ~~treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be~~ lawfully entitled to ~~the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into~~ exercise such ~~an agreement all Events of Default shall have been remedied~~ rights and ~~the Obligations paid in full. (f) To the extent permitted by applicable law~~remedies, each Grantor hereby ~~waives all~~ grants to the Agent, for the benefit of the Note Secured Parties, exercisable only after the occurrence and during the continuance of an Event of Default: (i) an irrevocable, nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of ~~redemption, stay, valuation and appraisal which~~ such Grantor to avoid the risk of invalidation of such Trademarks, to use, practice, license, sublicense, and otherwise exploit any and all Intellectual Property now ~~has~~ owned or ~~may at any time in the future have under any rule of law or statute now existing~~ held or hereafter ~~enacted~~acquired or held by such Grantor (which license shall include access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof) and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by such Grantor.

Appears in 1 contract

Samples: Indenture (Karyopharm Therapeutics Inc.)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, ~~on behalf~~ for the benefit of the ~~Credit~~ Secured Parties, may exercise (~~and at~~ subject to obtaining any required approvals from any Governmental Authorities that may not be waived by the ~~direction of the Required Lenders shall) exercise~~Grantors), in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below that may not be waived by Grantors) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-~~the Collateral Agent ~~or any Credit Party~~ or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents or any other Credit Party~~ Secured Parties shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal that it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price that might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent's request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net ~~proceeds~~ Proceeds of any action taken by it pursuant to this Section ~~6.5~~5.7, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the~~ such order as set forth in Section ~~6.4~~5.6, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with the net Proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) ~~If an Event~~ In the event of ~~Default~~ any sale or transfer of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such sale or transfer shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor's know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any ~~Collateral consisting of Inventory~~Intellectual Property subject to such sale or transfer, and such Grantor's customer lists and other records and documents relating to such Intellectual Property and to the ~~Co-Collateral Agents may conduct one or more going out of business sales~~manufacture, ~~in the Co-Collateral Agents’ own right or by one or more agents~~ distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Pledge and Security Agreement (Stratosphere Leasing, LLC)

Code and Other Remedies. (ab) If an Event of Default shall occur and be continuing, ~~the Co-Collateral Agents, on behalf of the Credit Parties~~Secured Party, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, ~~the Co-Collateral Agents~~Secured Party, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ Pledgor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in Pledgor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount of~~ Collateral sold at any ~~claim then due~~ such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code, Secured Party shall be entitled to credit bid and ~~payable from~~ use and apply the Secured Obligations (or any ~~Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by Secured Party at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of Pledgor, and Pledgor hereby waives (to the ~~Co-~~extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to 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. Secured Party shall not be obligated to make any sale of Collateral ~~Agents~~ regardless of notice of sale having been given. Secured Party 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. Secured Party may sell the Collateral without giving any warranties as to the Collateral. Secured Party may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Pledgor agrees that it would not be commercially unreasonable for Secured Party to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Pledgor hereby waives any claims against Secured Party arising by reason of the ~~Co-~~fact that the price at which any Collateral ~~Agents or~~ may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if Secured Party accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. ~~Each Grantor~~ Pledgor further agrees, at ~~the Co-Collateral Agents’~~ Secured Party’s request, to assemble the Collateral and make it available to ~~the Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Secured Party at places which ~~the Co-Collateral Agents~~ Secured Party shall reasonably select, whether at ~~such Grantor~~Pledgor’s premises or elsewhere. ~~The Co-~~Secured Party shall have the right to enter onto the property where any Collateral ~~Agents~~ is located without any obligation to pay rent and take possession thereof with or without judicial process. Secured Party shall ~~apply~~ have no obligation to marshal any of the ~~net proceeds of any action taken by it pursuant to this Section 6.5, after deducting~~ Collateral. (c) Secured Party shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of ~~the Co-Collateral Agents and the other Credit Parties~~ Secured Party hereunder, including, without limitation, reasonable attorneys’ fees and disbursements~~, to the payment~~ . Any net Proceeds remaining after such deductions shall be applied or retained by Secured Party in ~~whole or in part of the Obligations, in the order set forth in~~ accordance with Section ~~6.4, and only~~ 5.2. Only after such application and after the payment by ~~the Co-Collateral Agents~~ Secured Party of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the ~~New York~~ UCC, need ~~the Co-Collateral Agents~~ Secured Party account for the surplus, if any, to Pledgor. If Secured Party sells any ~~Grantor~~of the Collateral upon credit, Pledgor will be credited only with payments actually made by the purchaser and received by Secured Party. In the event the purchaser fails to pay for the Collateral, Secured Party may resell the Collateral and Pledgor shall be credited with proceeds of the sale. To the extent permitted by applicable law, ~~each Grantor~~ Pledgor waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, upon the ~~Co-Collateral Agents~~request of, and as directed by, the Majority Lenders the Administrative Agent, on behalf of the ~~Credit Parties, may (and at the direction of the Required~~ Lenders ~~shall)~~ shall exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement, the Bridge Loan Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by applicable law referred to below) to or upon any ~~Grantor~~ Grantor, the Parent Guarantor, any Issuer or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit Party~~ Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any ~~other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply any Proceeds from time to time held by it and the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and~~ Administrative Agent or the ~~other Credit Parties~~ Lenders hereunder, including, without limitation, reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Obligations, in ~~the order set forth in~~ accordance with Section ~~6.4,~~ 6.3 and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of applicable law, including, without limitation, Section 9-~~615(a)(3~~504(l)(c) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any ~~other Credit Party~~ Lender arising out of the exercise by them of any rights or remedies hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Creditrust Corp)

Code and Other Remedies. ~~(a) If~~ During the continuance of an Event of ~~Default shall occur and be continuing~~Default, ~~the Co-Collateral Agents, on behalf of the Credit Parties,~~ Lender may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ Lender in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~Law. Without limiting the generality of the foregoing, ~~the Co-Collateral Agents~~Lender, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by ~~law~~ Law referred to below) to or upon any ~~Grantor~~ Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon ~~the~~ any Collateral, ~~or any part thereof, and/or~~ and may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver ~~the~~ any Collateral ~~or any part thereof~~ (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral Agent or any Credit Party~~ Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Lender shall have the right upon any such public sale or sales, and, to the extent permitted by ~~law~~Law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Loan Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Loan Party further agrees, at ~~the Co-Collateral Agents’~~ Lender’s request, to assemble the Collateral and make it available to ~~the Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Lender at places ~~which the Co-Collateral Agents~~ that Lender shall reasonably select, whether at such ~~Grantor~~Loan Party’s premises or elsewhere. ~~The Co-Collateral Agents~~ Lender shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any ~~of the~~ Collateral or in any way relating to the Collateral or the rights of ~~the Co-Collateral Agents and the other Credit Parties~~ Lender hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the Loan Documents shall prescribe (or if no such order ~~set forth~~ is prescribed therein, then in ~~Section 6.4~~such order as Lender may elect), and only after such application and after the payment by ~~the Co-Collateral Agents~~ Lender of any other amount required by any provision of ~~law, including, without limitation, Section 9-615(a)(3) of the New York UCC~~Law, need ~~the Co-Collateral Agents~~ Lender account for the surplus, if any, to any ~~Grantor~~Loan Party. To the extent permitted by applicable ~~law~~Law, each ~~Grantor~~ Loan Party waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent or any other Credit Party~~ Lender arising out of the exercise by them of any rights hereunder. If any notice ~~of a~~ o proposed sale or other disposition of Collateral shall be required by ~~law~~Law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Security Agreement (Franklin Credit Management Corp/De/)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor 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 Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may ~~credit~~ sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event~~ In the event of ~~Default~~ any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall ~~occur~~ be included, and ~~be continuing~~the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with ~~respect~~ documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise Intellectual Property subject to such ~~Accounts or securing or~~ disposition, and such Grantor’s customer lists and other records and documents relating to such ~~Accounts~~Intellectual Property and to the manufacture, ~~on behalf of~~ distribution, advertising and ~~in the name~~ sale of such ~~Grantor;~~ products and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesservices. (d) ~~If an Event of Default~~ The Collateral Agent shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required have no obligation to ~~remove~~ marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Blackboard Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to ~~below~~below or under any Loan Document) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit against~~ at any time in the ~~purchase price~~ future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the ~~amount~~ extent notice of sale shall be required by law, at least ten days prior written notice to such Grantor of the time and place of any ~~claim then due~~ public sale or the time after which any private sale is to be made may constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and ~~payable from~~ place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Collateral Agent may sell the Collateral without giving any ~~Grantor on account~~ warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the ~~Obligations owed~~ Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the ~~Co-~~Collateral ~~Agents~~ or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and ~~the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms~~ sellers of ~~sale, hold, retain and dispose of such property without further accountability to any Grantor therefor~~assets. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent's reasonable request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the applicable Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the applicable Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder~~. If~~ . (c) In the event of any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any ~~Collateral if it shall determine not to do so, regardless~~ of the ~~fact that notice~~ Trademarks, the goodwill of ~~sale or other disposition of~~ the business connected with and symbolized by any Trademarks subject to such ~~Collateral~~ Disposition shall ~~have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to~~ be ~~adjourned from time to time by announcement at the time and place fixed for sale~~included, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any ~~Collateral consisting of Inventory~~Intellectual Property Collateral, the Coapplicable US Grantor shall supply the Collateral Agent or its designee with such US Grantor's know-~~Collateral Agents may conduct one or more going out of business sales~~how and expertise, in and with records, documents and things embodying the ~~Co-Collateral Agents’ own right or by one or more agents~~ same, relating to the manufacture, distribution, advertising and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of products or the provision of services relating to such ~~goods which constitute augmentations~~ Intellectual Property Collateral subject to ~~the Inventory (net of an allocable share of the costs~~ such disposition, and ~~expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or~~ such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutelyUS Grantor's customer lists pertaining thereto, ~~free from any claim or right~~ subject to appropriate confidentiality undertakings on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any person receiving such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposesproprietary information. (d) ~~If an Event of Default~~ The Collateral Agent shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required have no obligation to ~~remove~~ marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Skillsoft Public Limited Co)

Code and Other Remedies. (a) If Upon the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit Parties~~Guaranteed Creditors, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this ~~Agreement~~ Agreement, the other Loan Documents and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable ~~law~~law or otherwise available at law or equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Guaranteed Creditor or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party~~ Any Guaranteed Creditor shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any ~~Grantor~~Pledgor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guaranty and Pledge Agreement (Linn Energy, LLC)

Code and Other Remedies. ~~(a)~~ If an Ambac Event of Default shall occur and be continuing, the ~~Co-~~Note Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, or any Holder pursuant to and in accordance with Section 607 of the Indenture, may (~~and at the direction of the Required Lenders shall~~but shall not be obligated to) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law and Section 5.5, all rights and remedies of a secured party under the ~~New York UCC~~ Code (whether or not the Code applies to the affected Collateral) and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law and Section 5.5 and solely during the continuance of an Ambac Event of Default, the Note Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon ~~any Grantor~~ the Company or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances (but shall not be obligated to), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Note Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Note Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on~~ redemption in the ~~part of any Grantor~~Company, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Note Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.3, after deducting all reasonable and documented out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Note Collateral ~~Agents and the other Credit Parties~~ Agent hereunder, ~~including, without limitation,~~ including reasonable and documented attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the Company then due and owing, in the order ~~set forth~~ of priority specified in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor5.2. To the extent permitted by applicable law, ~~each Grantor~~ (i) the Company waives all claims, damages and demands it may acquire against ~~any Co-~~the Note Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Note Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Collateral Agreement (Ambac Financial Group Inc)

Code and Other Remedies. ~~(a) If~~ During the continuance of an ----------------------- Event of Default ~~shall occur~~ (and, if prior to the payment in full of the Senior Loan Obligations and ~~be continuing~~termination of the commitments under the Senior Credit Agreement, only to the extent not expressly prohibited by the provisions of the Senior Credit Agreement or Article VIII of the Subordinated Credit Agreement), the ~~Co-Collateral Agents, on behalf of the Credit Parties,~~ Secured Party may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Security Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Secured Party (and, if prior to the payment in full of the Senior Loan Obligations and termination of the commitments under the Senior Credit Agreement, only to the extent not expressly prohibited by the provisions of the Senior Credit Agreement or Article VIII of the Subordinated Credit Agreement), without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, ~~give option or~~ grant options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s 's board or office of ~~any Co-Collateral Agent or any Credit~~ the Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents or any other Credit~~ Secured Party shall have the right (and, if prior to the payment in full of the Senior Loan Obligations and termination of the commitments under the Senior Credit Agreement, only to the extent not expressly prohibited by the provisions of the Senior Credit Agreement or Article VIII of the Subordinated Credit Agreement) upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further ~~agrees~~agrees (and, if prior to the payment in full of the Senior Loan Obligations and termination of the commitments under the Senior Credit Agreement, only to the extent not expressly prohibited by the provisions of the Senior Credit Agreement or Article VIII of the Subordinated Credit Agreement), at the ~~Co-Collateral Agents’~~ Secured Party's request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Secured Party at places which the ~~Co-Collateral Agents~~ Secured Party shall reasonably select, whether at such Grantor’s 's premises or elsewhere. The ~~Co-Collateral Agents~~ Secured Party shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit Parties~~ Secured Party hereunder, ~~including, without limitation,~~ including reasonable attorneys’ ' fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the ~~order set forth in Section 6.4~~Subordinated Credit Agreement shall prescribe, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Secured Party of any other amount required by any provision of law, ~~including, without limitation, Section 9-615(a)(3) of the New York UCC,~~ need the ~~Co-Collateral Agents~~ Secured Party account for the surplus, if any, to any Grantor. Each Grantor shall, subject to the Lien Subordination Agreement and the subordination provisions of Article VIII of the Subordinated Credit Agreement, remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which the Secured Party is entitled, such Grantor also being liable for the fees and expenses of any attorneys employed by the Secured Party to collect such deficiency. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral Agent or any other Credit~~ the Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 ten (10) days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Subordinated Credit Agreement (National Steel Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall ~~occur~~ have occurred and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of itself and the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~waived~~waived to the extent permitted by law), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as ~~it may deem advisable~~ are commercially reasonable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-Collateral Agents~~ Administrative Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s written request, if an Event of Default shall have occurred and be continuing to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the ~~net~~ proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, 6.6 in the order ~~set forth~~ specified in Section ~~6.4,~~ 6.5 and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, ~~need the Co-Collateral Agents account for~~ return the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or ~~any other Credit~~ and Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 ten days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Sba Communications Corp)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations to the extent permitted by applicable law, all rights and remedies of a secured party under the ~~New York UCC or~~ Code and under any other applicable ~~law~~law and in equity. Without limiting the generality of the foregoing, to the ~~Co-~~extent permitted by applicable law, the Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any ~~Grantor~~ Granting Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part thereof, and/or may ~~forthwith~~ forthwith, subject to any existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to To the extent permitted by law, the Collateral Agent or any other Secured Party shall have the right, upon any such ~~private~~ sale or sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of any Grantor~~redemption in such Granting Party, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each ~~Grantor~~ Granting Party further agrees, at the ~~Co-~~Collateral ~~Agents’ request~~Agent’s request (subject to each applicable Intercreditor Agreement), if the Discharge of Senior Priority Obligations has occurred, to assemble the Security Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such ~~Grantor~~Granting Party’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this ~~Section 6.5~~Subsection 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations~~Obligations of the relevant Granting Party then due and owing, in the order ~~set forth~~ of priority specified in ~~Section 6.4~~Subsection 6.5 above, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the ~~New York UCC~~Code, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to ~~any Grantor~~such Granting Party. To the extent permitted by applicable law, ~~each Grantor~~ (i) such Granting Party waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the ~~exercise by them~~ repossession, retention or sale of the Security Collateral, other than any such claims, damages and demands that may arise from the gross negligence or willful misconduct of any ~~rights hereunder. If~~ of the Collateral Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Second Lien Guarantee and Collateral Agreement (Atkore International Group Inc.)

Code and Other Remedies. ~~(a)~~ If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the ~~Obligations~~Obligations or any other Loan Document (including the Credit Agreement), all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, subject to the Orders, (a) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Administrative Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk~~. Each purchaser at any such sale shall hold the property sold absolutely~~, ~~free from any claim or right on the part~~ (b) give notice of ~~any Grantor. The Co-Collateral Agents~~ sole control or any other ~~Credit~~ instruction under any Deposit Account Control Agreement or other control agreement with any securities intermediary and take any action therein with respect to such Collateral, (c) with respect to any Collateral consisting of Intellectual Property, on demand, to cause the security interest granted herein to become an assignment, transfer and conveyance of any of or all such Collateral by the applicable Grantors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall reasonably determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained), and (d) concurrently with written notice to the applicable Grantor, transfer and register in its name or in the name of its nominee the whole or any part of the Investment Property, to exchange certificates or instruments representing or evidencing Investment Property for certificates or instruments of smaller or larger denominations, and subject to the notice requirements of Section 7.3, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Investment Property as though the Administrative Agent was the outright owner thereof. The Administrative Agent or any other Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, if an Event of Default shall occur and be continuing, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~7.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Administrative Agent and the other ~~Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the ~~order set forth in Section 6.4~~Administrative Agent may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Administrative Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. ~~No Co-Collateral~~ Until the Administrative Agent ~~shall be obligated~~ is able to ~~make any sale~~ effect a sale, lease, or other disposition of Collateral, the Administrative Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Administrative Agent. The Administrative Agent may, if it ~~shall determine not~~ so elects, seek the appointment of a receiver or keeper to ~~do so, regardless~~ take possession of ~~the fact that notice of sale or other disposition of such~~ Collateral ~~shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same~~ and to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If enforce any of the ~~Collateral is sold~~Administrative Agent’s remedies (for the benefit of the Administrative Agent and the Lenders), ~~leased~~with respect to such appointment without prior notice or hearing as to such appointment. Notwithstanding the foregoing, neither the Administrative Agent nor the Lenders shall be required to (i) make any demand upon, or ~~otherwise disposed~~ pursue or exhaust any of by their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the ~~Co-Collateral Agents on credit,~~ payment of the Secured Obligations ~~shall not be deemed~~ or to ~~have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event~~ pursue or exhaust any of ~~Default shall occur and be continuing,~~ their rights or remedies with respect to any Collateral ~~consisting of Inventory~~therefor or any direct or indirect guarantee thereof, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase marshal the Collateral or any ~~portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free~~ guarantee of the Secured Obligations or to ~~carry out such sale pursuant~~ resort to ~~such agreement and no Grantor shall be entitled to the return of~~ the Collateral or any ~~portion thereof subject thereto~~such guarantee in any particular order, ~~notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events~~ or (iii) effect a public sale of ~~Default shall have been remedied and the Obligations paid in full~~any Collateral. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (NBC Acquisition Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other ~~Person~~ person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made may constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Collateral Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s reasonable request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. (b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.06, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) ~~If an Event of Default~~ The Collateral Agent shall ~~occur and be continuing, with respect~~ have no obligation to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove marshal any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunderCollateral. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Cheniere Energy Inc)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-~~Collateral ~~Agents~~Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit Party~~ Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so ~~sold~~sold or to become the licensor of all or any such Collateral, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, . For purposes of bidding and ~~may credit against~~ making settlement or payment of the purchase price for all or a portion of the ~~amount~~ Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code of the United States, the Collateral Agent, as agent for and representative of the Secured Parties in accordance with the Credit Agreement, shall be entitled to credit bid and use and apply the Secured Obligations (or any ~~claim then due and payable from any Grantor~~ portion thereof) as a credit on account of the ~~Obligations owed~~ purchase price for any Collateral payable by the Collateral Agent at such sale, such amount to be apportioned ratably to the ~~Co-~~Secured Obligations of the Secured Parties in accordance with their pro rata share of such Secured Obligations. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of each Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor 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 Collateral ~~Agents~~ Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral 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. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any ~~other Credit Party~~portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~Co-~~Collateral ~~Agents or~~ Agent arising by reason of the fact that the price at which any Collateral may have been sold at such ~~other Credit Party may, upon compliance with~~ a private sale was less than the ~~terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Collateral Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall ~~apply~~ have the ~~net proceeds~~ right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process. The Collateral Agent shall have no obligation to marshal any of ~~any action taken by it pursuant to this Section 6.5, after deducting~~ the Collateral. (b) The Collateral Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection ~~therewith~~ with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable and documented attorneys’ fees and disbursements~~, to~~ . Any net Proceeds remaining after such deductions shall be applied in accordance with Section 5.2. If the ~~payment in whole or in part~~ Collateral Agent sells any of the ~~Obligations~~Collateral upon credit, in the ~~order set forth in Section 6.4, and~~ relevant Grantor will be credited only ~~after such application and after the payment~~ with payments actually made by the ~~Co-~~purchaser and received by the Collateral ~~Agents of any other amount required by any provision of law~~Agent. In the event the purchaser fails to pay for the Collateral, ~~including, without limitation, Section 9-615(a)(3)~~ the Collateral Agent may resell the Collateral and the relevant Grantor shall be credited with proceeds of the ~~New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor~~sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by it or them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Pledge and Security Agreement (Contura Energy, Inc.)

Code and Other Remedies. ~~(a) If~~ Subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Agent, without prior demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any prior notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such ~~circumstances~~ circumstances, subject to the Intercreditor Agreement, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-Collateral~~ the Agent or any ~~Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser~~ The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of remedies in the proceeding sentence, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of such ~~sale shall hold~~ remedies or the ~~property sold absolutely, free from any claim or right on the part of any Grantor~~Agent’s rights hereunder. The ~~Co-Collateral Agents~~ Agent or any ~~other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-Collateral Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-Collateral Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents~~ Agent and the ~~other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the ~~order set forth in Section 6.4~~Agent may elect, and only after such application and after the payment by the ~~Co-Collateral Agents~~ Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the ~~Co-Collateral Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-Collateral~~ the Agent or any ~~other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any prior notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Second Lien Security Agreement (Hovnanian Enterprises Inc)

Code and Other Remedies. ~~(a) If~~ Upon the occurrence and during the continuance of an Event of ~~Default shall occur and be continuing~~Default, the ~~Co-~~Collateral ~~Agents~~Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to ~~them~~ it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the ~~New York~~ UCC or any other applicable law. Without limiting the generality of the foregoing, upon the ~~Co-~~occurrence and during the continuance of an Event of Default the Collateral ~~Agents~~Agent, on behalf of the Secured Parties, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of ~~any Co-~~the Collateral Agent or any ~~Credit~~ other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. ~~Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.~~ The ~~Co-~~Collateral ~~Agents or~~ Agent and any other ~~Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the ~~Co-~~Collateral ~~Agents’~~ Agent’s request, to assemble the Collateral and make it available to the ~~Co-~~Collateral ~~Agents at the Grantor’s sole risk and expense,~~ Agent at places which the ~~Co-~~Collateral ~~Agents~~ Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Collateral ~~Agents~~ Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~5.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-~~Collateral ~~Agents~~ Agent and ~~the~~ any other ~~Credit Parties~~ Secured Party hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the ~~order set forth in Section 6.4~~Credit Agreement shall prescribe, and only after such application and after the payment by the ~~Co-~~Collateral ~~Agents~~ Agent of any other amount required by any provision of law, ~~including, without limitation,~~ including Section 9-~~615(a)(3)~~ 610 of the ~~New York~~ UCC, need the ~~Co-~~Collateral ~~Agents~~ Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against ~~any Co-~~the Collateral Agent or any other ~~Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, each Grantor hereby acknowledges and agrees that such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Security Agreement (Merisant Co)

Code and Other Remedies. Subject (i) to the terms of the Interim Financing Order or, after entry thereof, the Final Financing Order, (ii) the terms of the Intercreditor Agreement and (iii) to the delivery of any notice expressly required pursuant to Section 7.02 of the Credit Agreement and the expiry of any notice period applicable to the exercise of such right or remedy: (a) If an Event of Default shall occur and be continuing, the Co-Collateral Agents, on behalf of the Credit Parties, may (and at the direction of the Required Lenders shall) exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the Co-Collateral Agents, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may (and at the direction of the Required Lenders shall) in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Co-Collateral Agent or any Credit Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. ~~The~~ Subject to any applicable provisions of the Financing Orders and the terms of the Intercreditor Agreement, the Co-Collateral Agents or any other Credit Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption, stay, valuation or appraisal on the part of any Grantor, which right or equity is hereby waived and released, and may credit against the purchase price the amount of any claim then due and payable from any Grantor on account of the Obligations owed to the Co-Collateral Agents or any other Credit Party, and the Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. Each Grantor further agrees, at the Co-Collateral Agents’ request, to assemble the Collateral and make it available to the Co-Collateral Agents at the Grantor’s sole risk and expense, at places which the Co-Collateral Agents shall reasonably select, whether at such Grantor’s premises or elsewhere. The Co-Collateral Agents shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Co-Collateral Agents and the other Credit Parties hereunder, ~~including, without limitation,~~ including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section 6.4, and only after such application and after the payment by the Co-Collateral Agents of any other amount required by any provision of law, ~~including, without limitation,~~ including Section ~~9-615(a)(3~~9¬615(a)(3) of the New York UCC, need the Co-Collateral Agents account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Co-Collateral Agent or any other Credit Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Inventory, the Co-Collateral Agents ~~may~~ may, subject to the Financing Orders and the terms of the Intercreditor Agreement, conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more ~~agents and contractors~~Agent Professionals. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Co-Collateral Agents and any such ~~agent or contractor,~~ Agent Professional in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such ~~agent or contractor~~Agent Professional). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such ~~agent or contractor~~ Agent Professional and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may, subject to the Financing Orders and the terms of the Intercreditor Agreement: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents ~~may~~ may, subject to the Financing Orders and the terms of the Intercreditor Agreement, enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable ~~law~~law and the Financing Orders, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Debt Guarantee and Collateral Agreement (Sears Holdings Corp)

Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the ~~Co-Collateral Agents~~Administrative Agent, on behalf of the ~~Credit~~ Secured Parties, may ~~(and at the direction of the Required Lenders shall)~~ exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable ~~law~~law or in equity. Without limiting the generality of the foregoing, the ~~Co-Collateral Agents~~Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may ~~(and at the direction of the Required Lenders shall)~~ in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any ~~Co-Collateral Agent or any Credit~~ Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each ~~purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor. The Co-Collateral Agents or any other Credit~~ Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of ~~redemption, stay, valuation or appraisal on the part of~~ redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may ~~credit~~ at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor 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 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 therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the ~~purchase price the amount of any claim then due and payable from any Grantor on account~~ Administrative Agent arising by reason of the ~~Obligations owed to~~ fact that the ~~Co-~~price at which any Collateral ~~Agents or any other Credit Party, and~~ may have been sold at such a private sale was less than the ~~Co-Collateral Agents or such other Credit Party may, upon compliance with the terms of~~ price which might have been obtained at a public sale, ~~hold, retain~~ even if the Administrative Agent accepts the first offer received and ~~dispose of~~ does not offer such ~~property without further accountability~~ Collateral to ~~any Grantor therefor~~more than one offeree. Each Grantor further agrees, at the ~~Co-Collateral Agents’~~ Administrative Agent’s request, to assemble the Collateral and make it available to the ~~Co-Collateral Agents at the Grantor’s sole risk and expense,~~ Administrative Agent at places which the ~~Co-Collateral Agents~~ Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The ~~Co-~~Administrative Agent shall have the right to enter onto the property where any Collateral ~~Agents~~ is located and take possession thereof with or without judicial process. (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section ~~6.5~~6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the ~~Co-Collateral Agents and the other Credit~~ Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the ~~Obligations, in the order set forth in Section 6.4,~~ Obligations and only after such application and after the payment by the ~~Co-Collateral Agents~~ Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-~~615(a)(3~~615(a) of the New York UCC, need the ~~Co-Collateral Agents~~ Administrative Agent account for the surplus, if any, to any Grantor. If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Administrative Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any ~~Co-Collateral Agent or any other Credit~~ Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. No Co-Collateral Agent shall be obligated to make any sale or other disposition . (c) In the event of any ~~Collateral if it shall determine not to do so, regardless~~ Disposition of the fact that notice of sale or other disposition of such Collateral shall have been given. The Co-Collateral Agents may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Co-Collateral Agents may fix and state in the notice of such sale. If any of the Collateral is sold, leased, or otherwise disposed of by the Co-Collateral Agents on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Co-Collateral Agents. (b) If Intellectual Property and/or if an Event of Default shall ~~occur~~ have occurred and be continuing, the goodwill of the business connected with ~~respect to any Collateral consisting of Inventory, the Co-Collateral Agents may conduct one or more going out of business sales, in the Co-Collateral Agents’ own right or by one or more agents~~ and ~~contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied~~ symbolized by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall supply the Administrative Agent or its designee with such Grantor~~. The Co~~’s know-~~Collateral Agents~~ how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to, and such Grantor’s use of, any Intellectual Property subject to such ~~agent or contractor~~Disposition, ~~in conjunction with any~~ and such ~~sale~~Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the manufacture, ~~may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Co-Collateral Agents or such agent or contractor). Any amounts realized from the~~ distribution, advertising and sale of such ~~goods which constitute augmentations to the Inventory (net of an allocable share of the costs~~ products and expenses incurred in their disposition) shall be the sole property of the Co-Collateral Agents or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantorservices. (c) If an Event of Default shall occur and be continuing, with respect to any Collateral consisting of Accounts, the Co-Collateral Agents may: (i) demand, collect and receive any amounts relating thereto, as the Co-Collateral Agents may reasonably determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Co-Collateral Agents may reasonably deem appropriate; (iv) without limiting the Co-Collateral Agents’ rights set forth in Section 7.1, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Co-Collateral Agents were the absolute owner thereof for all purposes. (d) If an Event of Default shall occur and be continuing, with or without legal process and with or without prior notice or demand for performance, the Co-Collateral Agents may enter upon, occupy, and use any premises owned or occupied by each Grantor. The Co-Collateral Agents shall not be required to remove any of the Collateral from any such premises upon the Co-Collateral Agents taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Co-Collateral Agents be liable to any Grantor for use or occupancy by the Co-Collateral Agents of any premises pursuant to this Section 6.5, nor for any charge (such as wages for the Grantors’ employees and utilities) reasonably incurred in connection with the Co-Collateral Agents’ exercise of the Co-Collateral Agents’ rights and remedies hereunder. (e) For purposes of this Section 6.5, a written and fully executed agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Co-Collateral Agents shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Co-Collateral Agents shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. (f) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Rent a Center Inc De)

Common use of Code and Other Remedies Clause in Contracts