Default Remedies. If any of the following (herein an "Event of Default") shall occur: (a) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or (b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or (c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or (d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof, (e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or (f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or (g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or (h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or (i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or (j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any one or more of the following remedies one or more times: A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either (i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or (ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;
Appears in 1 contract
Samples: Security Agreement (Strouds Inc)
Default Remedies. If At any time after a Default, Secured Party may elect (but is not obligated) to do any of the following (herein an "Event without advance notice to any of Default") shall occurthe Debtors:
(a) Borrower shall default in Accelerate the payment maturity dates of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any one or more of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds Liabilities (notwithstanding any provisions of such sale, less expenses of retaking, storage, repairing them) and reselling, and reasonable attorneys' fees incurred by Secured Party, declare them to be applied immediately due and payable;
(b) Exercise from time to the payment time all rights and remedies of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided a secured creditor under applicable law) or, including the Uniform Commercial Code in effect for the State of Florida;
(iic) retain Setoff against any Liability any amount owed by Secured Party to any Debtor; and
(d) Apply, setoff, off-set, or appropriate any General Intangibles against the Liabilities. Secured Party shall notify a Debtor (either concurrently or promptly thereafter) of any of the preceding actions taken by it, but its failure to do so will not affect the validity of any action taken by it or any of its rights or interests under this Agreement. Secured Party may exercise any of its rights or remedies serially, wholly, partially, or collectively, and the exercise of any one right does not preclude the exercise of any other right. After a Default, Debtors, at their sole expense and at Secured Party's request, shall assemble the Collateral and all prior payments make it available to Secured Party at a convenient place acceptable to Secured Party. Any notice of Indebtednesssale, disposition, or other intended action by Secured Party that is given to Debtors at the address for Debtors listed in this Agreement at least ten days before the action is taken will constitute reasonable notice of disposition to Debtors. Secured Party may apply any Proceeds from a disposition of any of the Collateral toward payment of any of the Liabilities, in satisfaction such order of application as Secured Party elects in its sole discretion, and each Debtor is jointly and severally liable to Secured Party for any deficiency between the Proceeds realized on any disposition of the Collateral and the amount of Liabilities remaining unpaid Indebtedness;unpaid. Secured Party may exercise its right to collect the Liabilities, and to enforce any other security for them, before or after taking any action under this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sailtech International Inc)
Default Remedies. If any of the following (herein Should an "Event of Default") shall Default occur:
, Secured Party may, at its election, exercise any and all Rights available to a secured party under the UCC, in addition to any and all other Rights afforded by the Loan Documents, at law, in equity, or otherwise, including, without limitation, (a) Borrower shall default in requiring Debtor to assemble all or part of the payment of Indebtedness Collateral and make it available to Secured Party or in making any other payment hereunder or under any Note when dueat a place to be designated by Secured Party which is reasonably convenient to Debtor and Secured Party, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in surrendering any policies of commercial insurance on all or part of the payment when due of any obligations of BorrowerCollateral and receiving and applying the unearned premiums as a credit on the Obligations, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue applying by appropriate judicial proceedings for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee without notice to Debtor, either before or liquidator after judgment is obtained against Debtor by Secured Party, for a substantial all or part of its property the Collateral irrespective of the value of such Collateral (and Debtor hereby irrevocably consents to any such appointment and to jurisdiction and venue of such appointment in state or such receiverfederal courts in Franklin County, trustee or liquidator is appointed without Ohio, at the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent option of Secured Party), which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwised) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, applying to the extent permitted Obligations any cash held by applicable lawSecured Party under this Agreement, and (e) open Debtor's commercial mail and collect any and all amounts due such Debtor from account debtors or insurers and exercise any and all of such Debtor's rights and remedies with respect to such accounts and Policies. Secured Party shall have the right provide Debtor not less than ten (10) calendar days written notice prior to exercise any one sale or more other intended disposition of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted Collateral by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before . The Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with sale and may purchase at such sale or without notice to Borrower, with or without having sales the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied for its own account (with whatever consequential credit to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to Obligations as may be for the account of Borrower (except as otherwise provided under applicable required herein or by law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;).
Appears in 1 contract
Samples: Security Agreement (E Loan Inc)
Default Remedies. If (a) Upon the occurrence and during the continuance of any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to , Secured Party may exercise any rights and remedies under this Agreement, the Loan Agreement, the Term Note and any related document or instrument (including without limitation any pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower If any Event of Default shall have occurred and be continuing, the Secured Party shall first take all reasonable steps to liquidate the 2,500,000 shares of common stock of Debtor which have been pledged to the Secured Party by New Millennium Capital Partners, LLC. If, and only if, the proceeds of the sale of such stock does not satisfy the Liabilities, then and only then, in addition to having the right to exercise any rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the payment when due State of any obligations of Borrower, whether Illinois or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when state where any such representation or warranty was made or givenCollateral is located, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditorsSecured Party may, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of in its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, orsole discretion:
(i) there iswithout being required to give any prior notice to Debtor apply the cash (if any) then held by it hereunder, without toward the prior consent of Liabilities in such order as Secured Party, which will not be unreasonably withheld, a change Party shall determine in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, orits sole discretion; and
(jii) if there isshall be no such cash or the cash so applied shall be insufficient to pay all obligations in full, based on sell the March 2Collateral, 1995 audited financial statementsor any part thereof, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worthany public or private sale, for cash, upon credit or for future delivery, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, Secured Party shall deem appropriate. The Secured Party shall be authorized at any such sale (to the extent permitted by applicable lawit deems it advisable to do so, in its sole discretion) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral then being sold for their own account for investment and not with a view to the distribution or resale thereof, and upon consummation of any such sale Secured Party shall have the right to exercise assign, transfer and deliver to the purchaser(s) thereof the Collateral so sold. Each such purchaser at any one such sale shall hold the property sold absolutely free from any claim or more right on the part of Debtor, and Debtor hereby waives (to the extent permitted by 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. To the extent that notice of sale shall be required to be given by law, Secured Party shall give Debtor at least ten days' written notice of Secured Party's intention to make any such public or private sale or sales. Secured Party shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the following remedies one fact that notice of sale of Collateral may have been given. Secured Party may, without notice or more times:
A) declare this Security Agreement 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. In case 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 Secured Party until the sale price is paid by the purchaser thereof, but Secured Party shall not incur any liability in defaultcase any such purchaser shall fail to take up and pay for the Collateral so sold; in the case of any such failure, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession sold again upon like notice. As an alternative to exercising the power of and remove the samesale herein conferred upon it, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all proceed by a suit at law or any of in equity to foreclose this Agreement and to sell the Collateral, the or any portion thereof, pursuant to a judgment or decree of a court of competent jurisdiction. The proceeds of such sale, less expenses sale of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred Collateral sold pursuant hereto shall be applied by Secured PartyParty in such order as it shall determine.
(c) Secured Party may, by written notice to Debtor, at any time and from time to time, waive any Event of Default or Unmatured Event of Default, which shall be applied for such period and subject to such conditions as shall be specified in any such notice. In the payment case of the unpaid total Indebtednessany such waiver, Borrower remaining liable for the balance of said unpaid total IndebtednessSecured Party and Debtor shall be restored to their former position and rights hereunder, and any surplus thereafter remaining Event of Default or Unmatured Event of Default so waived shall be deemed to be for cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Event of Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction part of the remaining unpaid Indebtedness;Secured Party of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Secured Party herein provided are cumulative and not exclusive of any rights or remedies provided by law.
Appears in 1 contract
Samples: Pledge Agreement (Nuway Medical Inc)
Default Remedies. If The occurrence of any of the following events shall constitute a Default (herein an "Event of Default") shall occur:
as such term is used herein): (a) Borrower shall default in the within 5 days of Secured Party's giving notice thereof to Debtor of amounts due, non-payment of Indebtedness any amount payable under the Security Agreement or on any of the Liabilities or failure to perform any agreement of Debtor contained herein; (b) if any statement, representation or warranty of Debtor herein or in any other writing at any time furnished by Debtor to Secured Party or is untrue in making any other payment hereunder or under any Note when due, material respect as of the date made and such default shall continue for a period Default is not cured by Debtor within fifteen days of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
's giving notice thereof to Debtor; (c) Borrower if any Obligor (which term, as used herein, shall mean Debtor and each other party primarily or secondarily liable on any of the Liabilities) becomes insolvent or unable to pay debts as they mature or makes an assignment for the benefit of creditors, or any proceeding is instituted by or against any Obligor alleging that such Obligor is insolvent or unable to pay debts as they mature; (d) entry of any judgment against any Obligor in excess of $100,000.00; (e) death of any Obligor who is a natural person or of any general partner of any Obligor which is a partnership; (f) dissolution, merger or consolidation, or transfer of a substantial part of the property of any Obligor which is a corporation or a partnership; (g) default by Debtor in any payment of principal or interest on any obligation for borrowed money in excess of $100,000.00 or in any payment on any lease obligations, beyond any period of grace provided with respect thereto or if Debtor shall default in the performance of any other covenant agreement, term or condition contained herein (including in any Schedule hereto)agreement under which such obligation is created, any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and if the effect of such default shall continue for thirty (30) days after written notice thereof is to Borrower by Secured Party, or
(d) Borrower shall breach any cause or permit the holder or holders of its insurance such obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any cause such representation or warranty was made or given, or
(f) Borrower shall obligations to become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent due prior to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
stated maturity; (h) if Debtor is a petition corporation, if the current owners of Debtor's voting stock shall be filed by at any time fail to own and control a majority of Debtor's outstanding issued voting stock; or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, is a material adverse change (defined in Debtor's or any Obligor's financial condition or performance after Debtor's execution of this Security Agreement. Whenever a Default shall be existing, all Notes and all other Liabilities may, notwithstanding any provisions thereof, at the option of Secured Party and without demand or notice of any kind, be declared, and thereupon immediately shall become, due and payable, and Secured Party may exercise from time to time any rights and remedies available to it under applicable law. Debtor agrees, in case of Default, to assemble, at its expense, all the Collateral at a convenient place acceptable to Secured Party and to pay all costs of Secured Party of collection of all Notes and all other Liabilities, and enforcement of rights hereunder, including reasonable attorney's fees and legal expenses, and expenses of any repairs to any realty or other property to which any of the Collateral may be affixed or be a decrease of at least one-third (1/3) of net worthpart. Without limiting the foregoing, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; thenupon Default Secured Party may, to the fullest extent permitted by applicable law, Secured Party shall have the right to exercise any one without notice, advertisement, hearing or more process of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount law of any indemnification hereunder if then determinablekind, with interest as provided herein; E(a) enter upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where any of the Collateral may be found located and take possession of and remove such Collateral, (b) sell any or all of the sameCollateral, whereupon free of all rights and claims of Borrower in the Collateral shall terminate absolutelyDebtor therein and thereto, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at any public or private sale, with and (c) bid for and purchase any or without notice to Borrower, with or without having all of the Collateral at any such sale. Debtor hereby expressly waives, to the fullest extent permitted by applicable law, any and all notices, advertisements, hearings or process of law in connection with the exercise by Secured Party of any of its rights and remedies upon Default. If any notification of intended disposition of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if mailed at least five days before such disposition, postage prepaid, addressed to Debtor either at the address shown below or at any other address of Debtor appearing on the records of Secured Party. Any notice to Debtor may, if there is more than one undersigned, be given to all of the undersigned care of any one of the undersigned selected by Secured Party. Any proceeds of any of the Collateral may be applied by Secured Party to the payment of expenses in connection with the repossession, storage, sale, at which preparation for sale Secured Party may purchase all or any and the like, of the Collateral, the proceeds including reasonable attorney's fees and legal expenses, and any balance of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred proceeds may be applied by Secured Party, to be applied to Party toward the payment of such of the unpaid total IndebtednessLiabilities, Borrower remaining and in such order or application, as Secured Party may from time to time elect and Debtor shall remain liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;deficiency.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Sheffield Steel Corp)
Default Remedies. If Upon the happening and during the continuance of any of the following (herein an "Event of Default") shall occur, Secured Party may then:
(a) Borrower shall default in the payment of Indebtedness to Secured Party Receive, endorse, collect by legal proceedings or in making any other payment hereunder or under any Note when dueotherwise, and such default shall continue demand payment directly from the makers, drawers, acceptors, issuers and/or obligors of the Collateral and receipt for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether all sums and amounts now or not to Secured Party, arising independently of this Security Agreement hereafter payable on or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in with respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws Collateral (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for notifying Broker to make all payments relating to the relief of debtors, or
(i) there isCollateral directly to Secured Party, without the prior consent necessity of Secured Party, which will not be unreasonably withheld, a change in control (defined joinder by Pledgor); provided that all such sums so paid to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, received by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have be applied on the right Obligations as provided herein;
(b) From time to exercise time extend the time of payment, arrange for payment in installation or otherwise modify the terms of or enter into any one other agreement in any way relating to or more affecting the Collateral, and in connection therewith may deposit or surrender control of any security held therefor, accept other property in exchange for any security held therefor and take such action as it may deem proper, and any money or property received in exchange for any security held therefor shall be applied on the Obligations or thereafter held by Secured Party pursuant to the provisions hereof;
(c) Make any compromise or settlement Secured Party deems desirable with respect to the Collateral;
(d) Insure, process, and preserve the Collateral
(e) Demand, xxx for, or receive any money or property at any time payable or receivable on account of or in exchange for Collateral;
(f) Transfer equitable and legal title to the Account to Secured Party (without the necessity of consent thereto by Pledgor), and/or register in the name of Secured Party any of the following remedies one Pledged Securities and other Collateral and whether or more times:not the Pledged Securities constituting a part of the Collateral are so transferred or registered to exchange any of the Pledged Securities for other property upon reorganization, recapitalization or other readjustment and in connection therewith to deposit any of the Pledged Securities with any committee or depository upon such terms as Secured Party may determine; all without notice and without liability except to account for property actually received by Secured Party; and
A(g) declare In its discretion, sell for cash and assign and deliver all or any part of the Collateral then covered by this Security Agreement in defaulta commercially reasonable manner at public or private sale without notice or advertisement other than as required under the Code, or may cause all or any part of the Collateral to be sold at judicial sale after judgment in any court of competent jurisdiction, and may bid and become purchaser at any such declaration public sale or judicial sale. If notice to Pledgor is required by the Code of public or private sale of all or any part of the Collateral, the Secured Party may give written notice five (5) days prior to the date of the public sale of all or any part of the Collateral or prior to the date after which private sale of all or any part of the Collateral will be made, by mailing such notice to Pledgor as provided in Section 6.8 of this Security Agreement (it being applicable to agreed and stipulated that all Schedules hereunder except as specifically excepted of the Pledged Securities constituting a part of the Collateral currently may be sold on a recognized market or redeemed by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable issuer thereof upon request). For this purpose, in addition to any unpaid Indebtedness due on or before Secured Party declares the security interests granted in this Security Agreement in defaultand irrespective of the validity and continuing effectiveness of such security interests, as liquidated damages Pledgor hereby designates and appoints the Secured Party his true and lawful attorney and agent to sell, or loss cause to be sold, any or all of a bargain the Collateral provided by such Pledgor and not as a penalty, an amount calculated apply the proceeds of such sale in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount Code. Pledgor agrees that such designation of any indemnification hereunder if then determinable, authority is coupled with an interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may until termination of this Security Agreement shall be found and take possession irrevocable. The proceeds of and remove the same, whereupon all rights sale of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any part of the Collateral, either in respect of the proceeds security interests granted by this Security Agreement, or of the power of attorney hereinabove granted, shall be utilized first to pay costs and expenses of such sale, less expenses of retakingincluding, storagewithout limitation, repairing and resellingattorneys’ fees, and reasonable attorneys' fees incurred by Secured Party, to the entire remainder of such proceeds shall be applied to against the unpaid Obligations. Any excess after the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining all Obligations shall be allocated to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Pledgor.
Appears in 1 contract
Samples: Security Agreement (Adtran Inc)
Default Remedies. If any In case an Actionable Default shall have occurred and be continuing, the Secured Party shall be entitled to exercise all of the following rights, powers and remedies (herein an "Event of Default") shall occur:
(a) Borrower shall default whether vested in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure it by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation Credit Transaction Document, or warranty was made or givenby law, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (and including, without limitation, all rights and remedies of a petition for reorganization, arrangement or extensionsecured party of a debtor in default under the Code) or under any other insolvency law or law providing for the relief protection and enforcement of debtorsits rights in respect of the Collateral, orand the Secured Party shall be entitled, without limitation, to exercise the following rights, which the Pledgor hereby agrees to be commercially reasonable:
(i) there isupon the declaration by the applicable Participating Creditor of any or all of the Obligations to be immediately due and payable or upon any or all of such Obligations otherwise becoming due and payable, to foreclose or otherwise enforce the Secured Party's security interest in or other Lien hereunder on any or all of the Collateral in any manner permitted by law or provided for in this Agreement;
(ii) to recover from the Pledgor all cost and expenses, including, without limitation, reasonable attorney's fees, incurred or paid by or on behalf of the prior consent Secured Party in exercising or enforcing any right, power, or remedy with respect to any or all of the Collateral provided to the Secured Party by this Agreement or by applicable law;
(iii) to receive all amounts payable in respect of the Collateral otherwise payable under Section 7 to the Pledgor and to enforce the payment of the Pledged Securities and to exercise all of the rights, powers, and remedies of the Pledgor thereunder;
(iv) to transfer all or any part of the Collateral into the Secured Party's name or the name of its nominee or nominees;
(v) to vote all or any part of the Collateral (whether or not transferred into the name of the Secured Party) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof;
(vi) at any time or from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral in one or more parcels, or any interest therein, at any public or private sale at any exchange, broker's board or at any of the Secured Party's offices or elsewhere, without, to the fullest extent permitted by law, demand of performance or advertisement of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise (all of which will are hereby expressly and irrevocably waived by the Pledgor), for cash, on credit or for other property, for immediate or future delivery without any assumption of credit risk, and for such price or prices and on such terms as the Secured Party in its sole discretion may determine; the Pledgor agrees that at least ten (10) days' notice of sale to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification; the Secured Party shall not be unreasonably withheldobligated to make any sale of Collateral regardless of notice of sale having been given; the Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and any such sale may, without further notice, be made at the time and place to which it was so adjourned; the Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise; at any such sale, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption; and the Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall the Secured Party be under any obligation to take any action whatsoever with regard thereto. Pledgor recognizes that the Secured Party may be unable to effect a change in control (defined to be a change public sale of the Collateral by reason of certain prohibitions contained in the possessionSecurities Act of 1933, directly as amended (the "Securities Act"), and applicable state law, and may be otherwise delayed or indirectlyadversely affected in effecting any sale by reason of present or future restrictions thereon imposed by governmental authorities, and that as a consequence of such prohibitions and restrictions the Secured Party may be compelled (i) to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof, or (ii) to seek regulatory approval of any proposed sale or sales, or (iii) to limit the amount of Collateral sold to any Person or group. The Pledgor agrees and acknowledges that private sales so made may be at prices and upon terms less favorable to Pledgor than if such Collateral was sold either at public sales or at private sales not subject to other regulatory restrictions, and that the Secured Party has no obligation to delay the sale of any of the power Collateral for the period of time necessary to direct or cause permit the direction issuer of the management and policies of BorrowerPledged Stock to register or otherwise qualify it, whether through even if such issuer would agree to register or otherwise qualify such Collateral for public sale under the ownership of voting securities, by contract Securities Act or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; thenapplicable state law. The Pledgor further agrees, to the extent permitted by applicable law, that the use of private sales made under the foregoing circumstances to dispose of the Collateral shall be deemed to be dispositions in a commercially reasonable manner. The Pledgor hereby acknowledges that a ready market may not exist for the Pledged Stock if it is not traded on a national securities exchange or quoted on an automated quotation system and agrees and acknowledges that in such event the Pledged Stock may be sold for an amount less than a pro rata share of the fair market value of the issuer's assets minus its liabilities. In addition to the foregoing, the Secured Party shall have may exercise such other rights and remedies as may be available under the right Credit Transaction Documents, at law (including without limitation the Code) or in equity;
(vii) to exercise settle, adjust, compromise and arrange all accounts, controversies, questions, claims and demands whatsoever in relation to all or any one or more part of the following remedies one or more times:Collateral;
A(viii) declare this Security Agreement to execute all such contracts, agreements, deeds, documents and instruments; to bring, defend and abandon all such actions, suits and proceedings; and to take all actions in default, such declaration being applicable relation to all Schedules hereunder except or any part of the Collateral as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in defaultits sole discretion may determine;
(ix) to appoint managers, as liquidated damages or loss agents, officers and servants for any of a bargain and not as a penalty, an amount calculated the purposes mentioned in accordance with the foregoing provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due Section 8 and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove dismiss the same, whereupon all rights as the Secured Party in its sole discretion may determine; and
(x) generally, to take all such other action as the Secured Party in its sole discretion may determine as incidental or conducive to any of Borrower the matters or powers mentioned in the Collateral shall terminate absolutely, foregoing provisions of this Section 8 and either
(i) retain all prior payments of Indebtedness and sell which the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any can do lawfully and to use the name of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable Pledgor for the balance of said unpaid total Indebtedness, purposes aforesaid and in any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;proceedings arising therefrom.
Appears in 1 contract
Default Remedies. If (a) Upon the occurrence and during the continuance of any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to , Secured Party may exercise any rights and remedies under this Agreement, and related document or instrument (including without limitation any pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of Without limiting any other covenant contained herein (including provision hereof, if any Schedule hereto)Event of Default shall have occurred and be continuing, any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, in addition to the extent permitted by applicable law, Secured Party shall have having the right to exercise any one rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the State of Illinois or more any Collateral is located, Secured Party may, in its sole discretion, exercise any rights or powers set forth in this Agreement. Without limiting any other provision hereof, Debtor shall pay all related expenses, including without limitation attorneys' fees. If any notification of intended disposition of any of the following remedies one or more times:
A) declare this Security Agreement in defaultCollateral is required by law, such declaration being applicable notification, if mailed, shall be deemed reasonably and properly given if mailed at least ten (10) days before such disposition, postage prepaid, addressed to all Schedules hereunder except as specifically excepted by Secured Party; B) declare Debtor at the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before address shown below. Secured Party declares this Security Agreement in default, as liquidated damages may proceed to sell or loss otherwise dispose of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale for cash or credit; provided, however, that Debtor shall be credited with proceeds of such sale only when the proceeds are actually received by Secured Party. Secured Party shall have the unqualified right, in connection with any such sale of Collateral, to execute and deliver an assignment of said beneficial interest to the purchaser at any such sale, free of any right of redemption by Debtor, and upon the filing thereof with Land Trustee, Land Trustee shall recognize such assignee as the absolute owner of the beneficial interest for any and all purposes whatsoever and shall act on directions of such assignee without any liability or obligation to Debtor whatsoever, without inquiry into the validity or propriety of such or assignment, and irrespective of any notice whatsoever from Debtor or any other person, unless and until Land Trustee is served with an order of court prohibiting further action by Land Trustee upon the direction of such assignee.
(c) In addition to BorrowerSecured Party's rights set forth above, with or without having upon the Collateral at occurrence and during the salecontinuance of an Event of Default, at which sale Secured Party may purchase proceed immediately:
(i) to exercise each and all of the powers, rights, and privileges reserved or granted to Debtor under the Land Trust Agreement to manage, direct, control, and deal with the Land Trust Property or any part thereof, including without limitation the right to collect and receive the proceeds from rentals and from mortgages, sales, conveyances, or other dispositions or realizations or any kind of or from the Land Trust Property or any part thereof, and
(ii) to protect and enforce this Security Agreement by suits or proceedings in equity, at law, or otherwise, whether for the foreclosure hereof or for the appointment of a receiver of the CollateralLand Trust Property or any part thereof, or for the enforcement of any other legal or equitable remedy available under applicable law.
(d) Any proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred the Collateral may be applied by Secured Party, to be applied Party to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance expenses and costs to exercise of said unpaid total IndebtednessSecured Party's rights hereunder, and any surplus thereafter balance of such proceeds shall be applied toward the Liabilities in such order as Secured Party shall determine in its sole discretion. Any balance remaining shall be returned to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Debtor. DEBTOR HEREBY WAIVES ANY HOMESTEAD RIGHT AND RIGHT OF REDEMPTION UPON THE FORECLOSURE SALE OF ANY OF THE COLLATERAL THAT MAY NOW OR HEREAFTER BE DEEMED TO APPLY TO ANY OF THE COLLATERAL.
Appears in 1 contract
Default Remedies. If any Upon the occurrence of a Default, subject to the terms and conditions of the Loan Agreement, Secured Party has the following (herein an "Event of Default") shall occurcumulative rights and remedies under this Agreement:
(a) Borrower shall default in the payment of Indebtedness to Debtor's Agent. Secured Party shall be deemed to be irrevocably appointed as Debtor's agent and attorney-in-fact with all right and power to enforce all of Debtor's rights and remedies under or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement the Collateral. All reasonable costs, expenses and such default shall continue for thirty (30) days after written notice thereof to Borrower liabilities incurred and all payments made by Secured PartyParty as Debtor's agent and attorney-in-fact, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, reasonable attorney's fees and expenses, shall be considered a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for loan by Secured Party to Debtor which shall be repayable on demand and shall accrue interest at the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not Default Rate and shall be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, part of the Obligations. Debtor hereby gives Secured Party the power and right on its behalf and in its own name to direct or cause take any and all actions set forth in this Agreement. This power of attorney is a power coupled with an interest and shall be irrevocable until the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results Obligations are paid in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, full. The Secured Party shall have the right be under no duty to exercise or withhold the exercise of any one or more of the following remedies one rights, powers, privileges, and options expressly or more times:
A) declare implicitly granted to it in this Security Agreement Agreement, and shall not be liable for any failure to do so or any delay in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount doing so. This power of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due attorney is conferred on or before Secured Party declares this solely to protect, preserve, maintain, and realize upon its Security Agreement Interest in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as Collateral. Neither Secured Party nor any of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of Lenders shall be responsible for any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees decline or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower diminution in the Collateral shall terminate absolutely, and either
(i) retain all prior payments value of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by neither Secured Party, to be applied to the payment Party nor any of the unpaid total Indebtedness, Borrower remaining liable for the balance Lenders shall be required to take any steps to protect or preserve any of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all or any rights against prior payments of Indebtednessparties or to protect, in satisfaction of preserve, or maintain any security interest or Lien given to secure the remaining unpaid Indebtedness;Collateral.
Appears in 1 contract
Default Remedies. If (a) Notwithstanding any provision of any document or instrument evidencing or relating to any Liability:
(i) upon the following occurrence and during the continuance of any Event of Default specified in Section 9(a)-(k), Secured Party at its ---------------- option may declare the Liabilities immediately due and payable without notice or demand of any kind; and (herein an "ii) upon the occurrence of any Event of Default specified in Section 9(l)-(m), the Liabilities shall be immediately and ---------------- automatically due and payable without action of any kind on the part of Secured Party. Upon the occurrence and during the continuance of any Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to , Secured Party may exercise any rights and remedies under this Agreement, any related document or instrument (including without limitation any pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower If any Event of Default shall default in the payment when due of any obligations of Borrowerhave occurred and be continuing, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, in addition to the extent permitted by applicable law, Secured Party shall have having the right to exercise any one rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the State where the main banking office of Secured Party and/or any Collateral is located, Secured Party may, in its sole discretion, exercise any rights or more of powers set forth in this Agreement. Secured Party may require Debtor to assemble the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable Collateral and deliver it to all Schedules hereunder except as specifically excepted a place designated by Secured Party; B) declare . Without limiting any other provision hereof, Debtor shall pay all related expenses, including without limitation attorneys' fees and reasonable time charges of attorneys of Secured Party in enforcing its rights hereunder. If any notification of intended disposition of any of the entire amount Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if mailed at least ten days before such disposition, by certified mail, postage prepaid, addressed to Debtor at the address of unpaid total Indebtedness immediately due and payable; C) declare due and payable Debtor shown below. Secured Party shall, in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions limitation of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in offset under applicable law, have the right to appropriate and apply all of the Collateral shall terminate absolutely, and either
(i) retain all prior payments in its possession to payment of Indebtedness and the Liabilities. Secured Party may proceed to sell or otherwise dispose of the Collateral at public or private salesale for cash or credit; provided, however, that Debtor shall be credited with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred sale only when the proceeds are actually received by Secured Party, to . Any proceeds of the Collateral may be applied by Secured Party to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance expenses and costs to exercise of said unpaid total IndebtednessSecured Party's rights hereunder, and any surplus thereafter balance of such proceeds shall be applied toward the Liabilities in such order as Secured Party shall determine in its sole discretion. Any balance remaining shall be returned to Debtor.
(c) Secured Party may, by written notice to Debtor, at any time and from time to time, waive any Event of Default or "Unmatured Event of Default" (as -------------------------- defined below), which shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, Secured Party and Debtor shall be restored to their former position and rights hereunder, and any Event of Default or Unmatured Event of Default so waived shall be deemed to be for cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Event of Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the account part of Borrower (except as otherwise Secured Party of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Secured Party herein provided under applicable are cumulative and not exclusive of any rights or remedies provided by law) or
(ii) retain . "Unmatured Event of Default" means any event or condition which would become an Event of Default with notice or the Collateral and all prior payments passage of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;time or both.
Appears in 1 contract
Samples: Security Agreement (Onepoint Communications Corp /De)
Default Remedies. If any Upon and after the occurrence and during the continuance of the following (herein an "Event of Default") shall occur:
, Secured Party may, without notice or demand, exercise in any jurisdiction in which enforcement hereof is sought, the following rights and remedies, in addition to the rights and remedies available to Secured Party under the other Documents, the rights and remedies of a secured party under the Uniform Commercial Code and all other rights and remedies available to Secured Party under applicable law, all such rights and remedies being cumulative and enforceable alternatively, successively or concurrently: (a) Borrower shall default in enforce the payment of Indebtedness security interests granted to Secured Party hereunder by collecting or liquidating all or any part of the Collateral or selling, assigning, leasing, renting, licensing or otherwise disposing of all or any part of the Collateral or any interest therein, in making any other payment hereunder one or under any Note when duemore parcels, at the same or different times, at public or private sale or disposition, or otherwise, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in institute any proceeding or proceedings to enforce the payment when due of Obligations and any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent security interests of Secured Party. Such sales or dispositions may be made for cash, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly upon credit or indirectly, for future delivery. Secured Party may also resell all or any part of the power to direct or cause the direction Collateral. In no event shall Debtor be credited with any part of the management proceeds of liquidation, sale or other disposition of any Collateral until cash payment thereon has actually been received by Secured Party and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have no obligation to delay any liquidation, sale or other disposition because the right to exercise same may result in the imposition of any one forfeiture, premium or more of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated Debtor hereby acknowledging that the risk of such forfeiture, premium or penalty is inherent in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with granting a security interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutelyto Secured Party. Without limitation of the foregoing, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all (x) shall comply with applicable state or any federal law requirements in connection with the disposition of the Collateral, and (y) may sell the proceeds Collateral without giving any warranties with respect thereto (Secured Party being specifically permitted to disclaim any warranties of such sale, less expenses of retaking, storage, repairing title and resellingthe like in connection therewith), and reasonable attorneys' fees incurred by Secured Party, such compliance or sale without warranties will not be considered to be applied to adversely affect the payment commercial reasonableness of the unpaid total Indebtedness, Borrower remaining liable for the balance any sale of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Collateral.
Appears in 1 contract
Samples: Security Agreement (Vaccinogen Inc)
Default Remedies. If On the occurrence of any event of Default or if the Borrower or the Debtors fail to keep, observe, comply with and perform all of the obligations and undertakings under this Agreement or any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in other Loan Documents or fail to pay any principal or interest on the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, then, and in any such default shall continue for a period of thirty (30) days event, the Secured Party may, at its option and without its cure by Borrowernotice to any party, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement declare all or any Note, and such default shall continue for a period portion of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove Indebtedness to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent immediately due and payable and may proceed to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, enforce payment of the power to direct or cause the direction of the management and policies of Borrowersame, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any or all rights and remedies provided herein, in the other Loan Documents, and by the UCC and otherwise available at law or in equity. The Secured Party may at any time and from time to time sell, resell, assign and deliver, in the Secured Party's discretion, all or any part of the Property, in one or more of parcels at the following remedies one same or more different times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments right, title and interest, claim and demand therein and right of Indebtedness and sell the Collateral redemption thereof, at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any . Whenever an event of the CollateralDefault exists, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred Debtors on demand by the Secured Party, to be applied will assemble any part of the Property in the Debtors' control and make it available to the payment of Secured Party at a place reasonably convenient to the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtednessparties hereto. All remedies hereunder are cumulative, and any surplus thereafter remaining indulgence or waiver by the Secured Party will not be construed as an abandonment of any other right hereunder or of the power to be for enforce the account of Borrower (except as otherwise provided same or another right at a later time. Whether the Secured Party elects to exercise any other rights or remedies under this Agreement or applicable law) or
(ii) retain , the Collateral and all prior payments Secured Party will be entitled to have a receiver appointed to take possession of Indebtedness, in satisfaction any part of the remaining unpaid Indebtedness;Property in the Debtors' control without notice, which notice the Debtors hereby waive, notwithstanding anything contained in this Agreement or any law heretofore or hereafter enacted.
Appears in 1 contract
Default Remedies. If On the occurrence of a Default under the Loan Agreement, the Secured Party may, at its option and without notice to any party, declare all or any portion of the following (herein an "Event Secured Indebtedness to be immediately due and payable and may proceed to enforce payment of Default") shall occur:
(a) Borrower shall default the same, to foreclose the Secured Party's security interest in the payment Property pursuant to the provisions of Indebtedness the UCC, to Secured Party exercise any or all other rights and remedies provided herein and in the other Loan Documents and by the UCC or otherwise available at law or in making any other payment hereunder or equity. Whenever the Debtor is in Default under any Note when duethe Loan Agreement, and such default shall continue for a period of thirty (30) days without its cure the Debtor on demand by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement will assemble the Property and make it available to the Secured Party at the Business Location, or any Noteif the Business Location is unavailable, at a place designated by the Secured Party. All remedies hereunder are cumulative, and such default shall continue for a period of thirty (30) days without its cure any indulgence or waiver by Borrower, or
(c) Borrower shall default in the performance Secured Party will not be construed as an abandonment of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof right hereunder or any Note of the power to enforce the same or another right at a later time. Whether the Secured Party elects to exercise any other document entered into in connection with rights or remedies under this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by or applicable law, the Secured Party, or
(d) Borrower as a matter of right and without regard to the sufficiency of the security for repayment of the Secured Indebtedness, without notice to Debtor and without any showing of insolvency, fraud, or mismanagement on the part of Debtor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent entitled to the appointment of a receiverreceiver or receivers of the Property or any part thereof, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitationbut not limited to, a petition for reorganizationall healthcare accounts receivable, arrangement or extension) or under any healthcare insurance receivables, and all other insolvency law or law providing for accounts receivable (the relief of debtors"Receivables"), or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, Debtor hereby irrevocably consents to the extent permitted by applicable law, Secured Party appointment of a receiver or receivers. Any receiver appointed pursuant to the provisions of this subsection shall have the right to exercise any one or more usual powers and duties of receivers in such matters including, but not limited to, the collection of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Receivables
Appears in 1 contract
Default Remedies. If any of the following (herein an "Event of Default") shall occur:
(a) Borrower If any Event of Default shall default occur and be continuing and upon written notice to the Pledgor by the Collateral Agent, the Collateral Agent, for the benefit of the Secured Parties, shall have full power and authority, subject to any requirements in the payment Indenture and the UCC, to take the following actions: (1) sell or otherwise dispose of Indebtedness to Secured Party the Pledged Notes or in making any other payment hereunder or under any Note when duepart thereof, and such default shall continue for apply the proceeds thereof as described below; (2) vote the Pledged Notes with respect to any and all matters and to exercise all rights to payments, conversion, exchange, subscription or otherwise with respect to the Pledged Notes; and (3) exercise any and all rights and remedies of a period of thirty (30) days without its cure by Borrower, orsecured party under the UCC.
(b) Borrower shall default To the extent permitted by any applicable law, any sale or other disposition by the Collateral Agent, as permitted under Section 7(a) above, may be made by public or private proceedings and may be made by one or more contracts, as a unit or in parcels, at such time and place, by such method, in such manner and on such terms as the payment when due Collateral Agent may determine. Except as required by law, such sale or other disposition may be made without advertisement or notice of any obligations kind or to any person. Where reasonable notification of Borrowerthe time or place of such sale or other disposition is required by law, whether such requirement shall have been met if such notice is telegraphed, sent by facsimile, cabled or not mailed, postage prepaid, at least ten (10) days before the time of such sale or other disposition to each person entitled thereto at such person’s address as specified in Section 13 below. To the extent permitted by any applicable law, the Collateral Agent and/or any Secured PartyParty may buy any or all of the Pledged Notes upon any public or private sale thereof, arising independently with the proceeds thereof applied as required by this Agreement and the UCC. To the extent permitted by any applicable law, upon any such sale or sales the Pledged Notes so purchased shall be held by the purchaser absolutely free from any claims or rights of this Security Agreement whatsoever kind or nature, including any equity of redemption or any Notesimilar rights, all such equity of redemption and such default shall continue for a period of thirty (30) days without its cure any similar rights being hereby expressly waived and released by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice Pledgor thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law. In the event any consent, Secured Party approval or authorization of any governmental agency shall have be necessary to effectuate any such sale or sales, the right Pledgor shall execute, and hereby agree to exercise any one or more cause the issuer of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable Pledged Notes to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in defaultexecute, as liquidated damages necessary, all applications or loss other instruments as may be required; provided that the foregoing shall not obligate the Pledgor to register the Pledged Notes under the Securities Act of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss1933, as of amended (the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount “Securities Act”). The proceeds of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees such sale or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral other disposition shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining Obligations. The Pledgor shall be liable for any deficiency in payment of the balance Obligations, including all costs and expenses of said unpaid total Indebtednesscollection, custody, sale or other disposition or delivery and all other charges due against the Pledged Notes, as hereinbefore enumerated.
(c) The Pledgor recognizes that the Collateral Agent may be unable to effect a public sale of all or a part of the Pledged Notes by reason of certain prohibitions contained in the Securities Act, but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Pledged Notes for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor agrees that private sales so made may be at a price and on other terms less favorable to the seller than if the Pledged Notes were sold at public sales, and that the Collateral Agent has no obligation to delay the sale of any surplus thereafter remaining such Pledged Notes for the period of time necessary to permit such Pledged Notes to be registered for public sale under the account Securities Act. The Pledgor agrees that sales made under the foregoing circumstances shall not be deemed to have been made in a commercially unreasonable manner by virtue of Borrower (except as otherwise provided under applicable law) or
(ii) retain any sale made on terms less favorable to the Collateral and all prior payments of Indebtedness, in satisfaction seller resulting from the private nature of the remaining unpaid Indebtedness;sale.
Appears in 1 contract
Samples: Pledge and Security Agreement (WESTMORELAND COAL Co)
Default Remedies. If Upon the occurrence of any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default Default described in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
Section 4.01 (d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
or (e) any representation or warranty made by Borrower ), hereof, lending obligations of Secured Party under the line of credit in this Security Agreement or any other documents entered into in connection with this Security Agreement favor of Debtor, shall prove to be incorrect in any material respect when any such representation or warranty was made or givenimmediately terminate, or
(f) Borrower and the notes thereunder shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any one or more of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) , all without written notice and without presentment, demand, protest, notice of protest or dishonor or any other notice of default of any kind, all of which are hereby expressly waived by the Debtor. Upon the occurrence of any other Event of Default specified in Section 4.01 hereof, at any time during the continuance of such Event of Default, Secured Party may by written notice to Debtor declare the entire principal amount of all Indebtedness then outstanding including interest accrued thereon to be immediately due and payable in addition to without presentment, demand, protest, notice of protest or dishonor or other notice of default of any unpaid Indebtedness due on or before kind, all of which are hereby expressly waived by the Debtor, and the lending obligations of Secured Party declares this Security Agreement under the line of credit shall immediately terminate unless and until Secured Party shall reinstate same in default, as liquidated damages or loss writing. Upon the happening and during the continuance of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an any Event of LossDefault Secured Party may then, as or at any time thereafter and from time to time, apply, set-off, collect, sell in one or more sales, lease, or otherwise dispose of, any or all of the date that Collateral, in its then condition or following any commercially reasonable preparation or processing, in such order as Secured Party declares this Security Agreement in default; D) declare due may elect, and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral such sale may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral made either at public or private salesale at its place of business or elsewhere, with or without notice to Borrowerat any brokers' board or securities exchange, with either for cash or without having the Collateral at the saleupon credit or for future delivery, at which sale such price as Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and resellingdeem fair, and reasonable attorneys' fees incurred Secured Party may be the purchaser of any or all Collateral so sold and may hold the same thereafter in its own right free from any claim of Debtor or right of redemption. No such purchase or holding by Secured Party, to Party shall be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, deemed a retention by Secured Party in satisfaction of the remaining unpaid Indebtedness;Obligations. All demands, notices and advertisements, and the presentment of property at sale are hereby waived. If, notwithstanding the foregoing provisions, any applicable provision of the Code or other law requires Secured Party to give reasonable notice of any such sale or disposition or other action, Debtor hereby agree five (5) days' prior written notice shall constitute reasonable notice. Secured Party may require Debtor to assemble the Collateral and make it available to Secured Party at a place designated by Secured Party which is reasonably convenient to Secured Party and Debtor. Any sale hereunder may be conducted by an auctioneer or any officer or agent of Secured Party.
Appears in 1 contract
Default Remedies. If any Upon the occurrence of the following (herein an "Event of Default, in addition to any and all other rights and remedies which Secured Party may then have hereunder, including, but not limited to, the rights set forth in Section 4 herein, or under the Uniform Commercial Code of the State of Georgia, or any other pertinent jurisdiction (the ") shall occurCode"), or otherwise, Secured Party may, at its option:
(a) Borrower shall default reduce its claim to judgment or foreclose or otherwise enforce the Security Interests, in the payment of Indebtedness to Secured Party whole or in making part, by any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, oravailable judicial procedure;
(b) Borrower shall default require Debtor, upon the receipt of any revenue, income, profits or other sums in which a security interest is granted by this Agreement or of any check, draft, note, trade acceptance or other instrument evidencing an obligation to pay any such sum, to hold the same in trust for Secured Party in precisely the form received, and to forthwith, endorse, transfer and deliver any such sums or instruments, or both, to Secured Party for prompt application to the payment when due of any obligations of Borrower, whether or not the Obligations in a manner satisfactory to Secured Party;
(c) require Debtor to assemble and make available to Secured Party, arising independently at the expense of this Security Agreement or Debtor, the Collateral at any Note, place mutually convenient to Debtor and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or;
(d) Borrower shall breach remove all or any part of its insurance obligations under paragraph 10 hereof,the Collateral from any premises on which any part may be located for the purpose of effecting a sale or any disposition thereof (and with respect to motor vehicles, Secured Party may use Debtor's license plates);
(e) enter upon the premises wherever the Collateral may be, freely and without being deemed to disrupt the peace, and take possession of the Collateral, and demand and receive such possession from any representation person or warranty organization which has possession thereof, and to take such measures as it may deem necessary or proper for the care or protection thereof, including the right to remove all or any portion of the Collateral, and with or without taking such possession may sell or cause to be sold, whenever Secured Party shall decide, in one or more sales or parcels, at such price as Secured Party may deem adequate, and for cash or, on credit or for future delivery, without assumption of any credit risk, all or any portion of the Collateral, at any broker's board or at public or private sale (whether such sale is conducted by Secured Party or a private auction company hired by Secured Party), without demand of performance or notice of intention to sell or of time or place of sale (except ten [10] days' prior written notice to Debtor of the time and place of any public sale or sales or of the time after which any private sale or sales or other intended disposition is to be made and only such other notice as may be required by Borrower in this Security Agreement applicable statute and cannot be waived, which notice Debtor hereby acknowledges, shall be considered commercially reasonable for all purposes), and Secured Party or any other documents entered into in connection with this Security Agreement person may be the purchaser of all or any portion of the Collateral so sold and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any equity of redemption, of Debtor, and such demand, notice, claim, right or equity being hereby expressly waived and released. In any action hereunder, Secured Party shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent entitled to the appointment of a receiver without notice, to take possession of all or any portion of the Collateral and to exercise such powers as the court shall confer upon the receiver. Without limiting the scope or definition of commercial reasonableness, trustee Debtor agrees that any disposition of any Collateral pursuant hereto shall be commercially reasonable within the meaning of Section 9-504 of the Code as in effect in the jurisdiction or liquidator for a substantial part jurisdictions where such Collateral is located.
(f) at its discretion, retain the Collateral in satisfaction of the Obligations whenever the circumstances are such that Secured Party is entitled to do so under the Code;
(g) exercise any and all other rights, remedies, and privileges it may have under the Note or any other Loan Documents; and Debtor hereby irrevocably makes, constitutes and appoints Secured Party or any of its property officers or such receiverdesignees its true and lawful attorney-in-fact, trustee or liquidator is appointed without upon the application or consent occurrence of Borroweran Event of Default (A) to enforce all rights of Debtor under and pursuant to any agreements relating to the Collateral, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing all for the relief of debtors, or
(i) there is, without the prior consent sole benefit of Secured Party, or (B) to enter into and perform such agreements as may be necessary in order to carry out the provisions of this Agreement, or to carry out the terms, covenants and conditions of this Agreement which will not be unreasonably withheld, a change in control (defined are required to be a change in the possessionobserved or performed by Debtor, directly or indirectly(C) to execute such other and further grants, mortgages, pledges and assignments of the power to direct Collateral as Secured Party may reasonably require for the protecting or cause the direction maintaining of the management Security Interests granted to Secured Party by this Agreement. Debtor hereby ratifies and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) confirms all that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worthSecured Party, as determined such attorney-in-fact, or its substitutes, shall do by virtue of this power of attorney. Debtor hereby waives all rights to marshalling of assets or sale in accordance inverse order of alienation, including any such rights with generally accepted accounting principles) in Borrower's financial condition; then, respect to the extent permitted by applicable law, Collateral. Secured Party shall have the right to exercise not be responsible or liable for any one shortage, discrepancy, damage, loss or more destruction of any part of the following remedies one Collateral, wherever the same may be located and regardless of the cause thereof, unless the same shall happen through the gross negligence or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by willful misconduct of Secured Party; B) declare the entire amount . Secured Party shall not, under any circumstances or in any event whatsoever, have any liability for any error or omission or delivery of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition any kind incurred with respect to any unpaid Indebtedness due on instrument received in payment for the Collateral or before for any damage resulting therefrom. In no event shall Secured Party declares be liable in any manner or for anything in connection with this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated other than to account for moneys actually received by it in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;terms hereof.
Appears in 1 contract
Default Remedies. If any of the following (herein an "Event of Default") a Default shall occurhave occurred and be continuing, Secured Party may from time to time in its discretion, without limitation and without notice except as expressly provided below:
(a) Borrower shall default exercise in respect of the payment of Indebtedness Collateral, in addition to Secured Party or in making any other payment hereunder rights and remedies provided for herein, under the other Obligation Documents or otherwise available to it, all the rights and remedies of a secured party on default under any Note when due, and such default shall continue for a period of thirty the UCC (30) days without its cure by Borrower, orwhether or not the UCC applies to the affected Collateral);
(b) Borrower shall default in the payment when due require Debtor to, and Debtor hereby agrees that it will at its expense and upon request of any obligations of Borrower, whether or not to Secured Party, arising independently promptly assemble all books, records and information of this Security Agreement or any Note, and such default shall continue for Debtor relating to the Collateral at a period of thirty (30) days without its cure place to be designated by Borrower, orSecured Party which is reasonably convenient to both parties;
(c) Borrower shall default reduce its claim to judgment or foreclose or otherwise enforce, in whole or in part, the performance of security interest created hereby by any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, oravailable judicial procedure;
(d) Borrower dispose of, at its office, on the premises of Debtor or elsewhere, all or any part of the Collateral, as a unit or in parcels, by public or private proceedings, and by way of one or more contracts (it being agreed that the sale of any part of the Collateral shall breach not exhaust Secured Party’s power of sale, but sales may be made from time to time, and at any time, until all of the Collateral has been sold or until the Secured Obligations have been paid and performed in full), and at any such sale it shall not be necessary to exhibit any of its insurance obligations under paragraph 10 hereof,the Collateral;
(e) any representation buy (or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any allow one or more of the following remedies Lenders to buy) the Collateral, or any part thereof, at any public sale;
(f) buy (or allow one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; DLenders to buy) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such saleor any part thereof, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and at any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain private sale if the Collateral and all prior payments is of Indebtedness, a type customarily sold in satisfaction a recognized market or is of a type which is the remaining unpaid Indebtednesssubject of widely distributed standard price quotations;
Appears in 1 contract
Samples: Credit Agreement (Cimarex Energy Co)
Default Remedies. If any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when dueExcept as expressly and unambiguously set forth herein, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material deemed absolute and without conditions. Upon an Event of Default, the Secured Party may enforce its rights with respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment Secured Assets without first being required to attempt collection of a receiverany sums due from the Debtor. If an Event of Default shall occur, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition Secured Party shall be filed by or against Borrower under have the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, orfollowing rights:
(i) there isto perform any defaulted covenant or agreement of this Security Agreement, without the prior consent of Loan Agreement and the Research Agreement to such extent as the Secured PartyParty shall reasonably determine and advance such monies as it shall deem reasonably advisable for the aforesaid purpose and all monies so advanced, which will not together with interest thereon from the date advanced until paid at a rate per annum equal to the rate then in effect on the Note, shall be unreasonably withheld, a change in control (defined to secured hereby and shall be a change in the possession, directly or indirectly, repaid promptly after notice of the power amount due without demand; provided, however, that nothing herein contained shall be construed to direct or cause require the direction Secured Party to advance money for any of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, oraforesaid purposes;
(jii) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; thennotify all account debtors, to the extent permitted by applicable lawLaw, to pay directly to the Secured Party shall have or otherwise as the right Secured Party may specify all amounts it owes then or thereafter to exercise Debtor until such time as the Secured Party has received all amounts to which it is entitled under the Note and this Security Agreement;
(iii) to take control of any one and all proceeds to which the Secured Party may be entitled under this Security Agreement, the Loan Agreement, the Note, or more under any applicable laws;
(iv) without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and/or notices are hereby expressly waived), to take immediate possession of the following remedies Secured Assets, and, with or without taking possession of the Secured Assets, to sell, lease, collect, receive, appropriate, realize upon or otherwise dispose of in any manner whatsoever (or contract to do so), any or all of the Secured Assets or any part thereof, at one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral either at public or private sale, upon commercially reasonable terms and in accordance with or without notice to Borrowerthe UCC, with or without having and the Collateral at the sale, at which sale Secured Party may purchase all become the purchaser thereof at any one or more public sale or sales and, to the extent permitted by Law, upon any one or more private sale or sales, free of any right or equity of redemption in Debtor, such right or equity being hereby released; provided that, any sale may be adjourned at any time and from time to time to a reasonably specified time and place by announcement at the time and place of sale or by publication or otherwise of the Collateraltime and place of such adjourned sale; provided further that, the proceeds of such sale, less any sale shall be applied (1) first to the expenses of retakingtaking, storage, repairing holding and resellingpreparing for sale or disposition, and sale or disposition and the like (including reasonable attorneys' fees incurred by Secured Party’ fees), to be applied (2) next to the payment interest due under the Loan Agreement and/or the Note, (3) next to the principal due under Loan Agreement and/or the Note and the other amounts secured under clauses (i) and (ii) of Section 3 hereof, (4) next to all other amounts secured under Section 3 hereof, (5) next to the holder of any subordinate security interest therein if written notification of demand therefor is received and verified by the Debtor before distribution of the unpaid total Indebtednessproceeds (or, Borrower remaining if there is a dispute with respect thereto, the Secured Party can deposit such amount with a court or an appropriate third party) and (6) lastly, any surplus to Debtor and Debtor shall remain liable for any deficiency if the proceeds of any sales or other dispositions of the Secured Assets are insufficient to pay all amounts to which Secured Party is entitled, Debtor also being liable for the balance reasonable fees and expenses of said unpaid total Indebtednessany attorneys employed by Secured Party to collect such deficiency; and provided that, any such sale or sales, public or private, may be made on credit at the sole discretion of the Secured Party;
(v) to take immediate possession of the Secured Assets and to use or operate the Secured Assets in order to preserve the same or their value, and collect, receive and use all of the net profits from such use or operation to pay indebtedness secured by such Secured Assets; provided that, any surplus thereafter remaining continuing royalties or other similar amounts derived from the commercial sale of any products developed from the Secured Assets under the Research Agreement (as opposed to the sale of any products deriving from intellectual property that may be developed by the Secured Party) shall be allocated between the parties in accordance with Section 7.4.1 of the Research Agreement; provided further that, any sale or license by the Secured Party of any intellectual property included in the Secured Assets to any third party shall be deemed to be solely for the account of Borrower the Secured Party and not in any manner or portion for the account of Debtor or distributable to Debtor under and pursuant to the terms of the Research Agreement;
(except vi) to require Debtor, to the extent practicable, to assemble the Secured Assets and make them available to the Secured Party at such locations as the Secured Party shall reasonably designate;
(vii) to enter all of the Debtor’s facilities to remove the Secured Assets therefrom and take possession of the appropriate portions of the Debtor’s books and records and computer hardware and software, and to use all of the same in a manner the Secured Party deems appropriate in order to preserve and sell or otherwise provided dispose of the Secured Assets;
(viii) to (without assuming any obligations or liability or any kind or nature thereunder), at any time and from time to time, enforce against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any patent, know-how and/or other licenses included in the Secured Assets and, in the exercise of commercial reasonableness, take or refrain from taking any action under any such licenses, and the Debtor hereby releases the Secured Party free and harmless from and against any claims arising out of any lawful action so taken or omitted to be taken under applicable law with respect thereto;
(ix) to proceed to protect and enforce its rights under the Loan Agreement, the Note and this Security Agreement by a suit or suits in equity or at law, whether for specific performance or observance of any terms, provisions, covenants or conditions herein or therein contained in aid of the execution of any power therein or herein granted, for any foreclosure hereunder or thereunder, or for the enforcement of any other proper legal or equitable remedy;
(x) orto exercise any such additional and/or different rights or remedies as are provided for in the Loan Agreement and/or the Note; and
(xi) to act as true and lawful attorney-in-fact of the Debtor, with full power of substitution, with full irrevocable power and authority in the place and stead of the Debtor, in the name of the Debtor, or in its own name, for the purpose of carrying out the terms of this Security Agreement, to take any and all appropriate action, including, without limitation, to execute, deliver, record and file any and all Documents which may be reasonably necessary or desirable to accomplish the purposes of this Security Agreement.
(b) The Secured Party shall, in addition, have any and all other rights and remedies provided by law or equity, including, without limitation, the rights and remedies of a secured party under the Uniform Commercial Code. All of the Secured Party’s rights and remedies will be cumulative, and no waiver of any default will affect any other subsequent default. The rights and remedies provided in this Security Agreement are cumulative, may be exercised concurrently or separately, may be exercised from time to time and in such order, without any marshalling, as the Secured Party shall determine. Debtor expressly acknowledges that the Secured Party is not obligated to first foreclose its security interest in the Joint Patents, the decision as to the order in which the Secured Assets are to be addressed hereunder being in Lender’s sole and absolute discretion. To the extent permitted by applicable Law, Debtor waives all claims, damages and demands against Secured Party arising out of the repossession, retention, sale or other disposition of the Secured Assets. Nothing herein contained shall be construed as preventing the Secured Party from taking all reasonable and lawful actions to protect its interest in the event that liquidation, insolvency, bankruptcy, reorganization or foreclosure proceedings of any nature whatsoever affecting the property or assets of Debtor are voluntarily or involuntarily instituted. The Secured Party’s sole duty with respect to the Secured Assets, including, without limitation the custody, safekeeping and physical preservation of the Secured Assets shall be those duties which are imposed by the Uniform Commercial Code and cannot, by contract, be waived or otherwise eliminated. Neither the Secured Party, nor any of its respective directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Secured Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Secured Assets upon the request of the Debtor or otherwise.
(i) The Debtor expressly acknowledges that the Secured Party may record evidence of this Security Agreement and the security interest created hereby with the appropriate government filing/recording office(s) in such countries as the Secured Party desires in its sole discretion, whether by filing or recording a Patent Collateral Assignment in the form of Exhibit A attached hereto or with such other forms as may be customary, necessary and appropriate for similar use in a particular country. The Debtor agrees to execute and deliver promptly all such forms presented to it by the Secured Party.
(ii) retain Contemporaneously herewith, the Debtor shall execute and deliver to the Secured Party a Patent Assignment in the form attached hereto as Exhibit B (and such other forms as may be customary, necessary and appropriate for similar use in a particular country other than the United States of America that the Secured Party may present to the Debtor in the future) permanently assigning all Debtor’s rights in the Patent Collateral and all prior payments to the Secured Party. Such assignment document(s) shall be held by the Secured Party in escrow until the occurrence of Indebtednessan Event of Default hereunder or under the Loan Documents. After such occurrence, in satisfaction addition to all other rights and remedies of the remaining unpaid Indebtedness;Secured Party set forth herein, the Secured Party may, at its sole option, record such escrowed documents with the United States Patent and Trademark Office and with the appropriate government filing/recording office(s) in such other countries as the Secured Party desires in its sole discretion.
Appears in 1 contract
Samples: Loan Agreement (Epix Medical Inc)
Default Remedies. If (a) Notwithstanding any provision of any document or instrument evidencing or relating to any Liability:
(i) upon the occurrence and during the continuance of any Event of Default specified in subsections (a)-(j) of the following Section entitled "EVENTS OF DEFAULT," Secured Party at its option may declare the Liabilities immediately due and payable without notice or demand of any kind; and (herein an ii) upon the occurrence of any Event of Default specified in subsections (k)-(m) of the Section entitled "EVENTS OF DEFAULT," the Liabilities shall be immediately and automatically due and payable without action of any kind on the part of Secured Party. Upon the occurrence and during the continuance of any Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to , Secured Party may exercise any rights and remedies under this Agreement, any related document or instrument (including any Related Document evidencing Liabilities or pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower If any Event of Default shall default in the payment when due of any obligations of Borrowerhave occurred and be continuing, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, in addition to the extent permitted by applicable law, Secured Party shall have having the right to exercise any one rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in Illinois and any State in which any Collateral is located, Agent may, in its sole discretion, exercise any rights or more powers set forth in this Agreement. Secured Party may require Debtor to assemble the Collateral and deliver it to a place designated by Agent. Agent has no obligation to marshal Collateral or to clean up or otherwise prepare Collateral for sale, and may specifically disclaim any warranties as to the Collateral, including those of title, merchantability, and fitness for a particular purpose. Agent may comply with any applicable local, state or federal law requirements in connection with a disposition of Collateral, and compliance will not be considered adversely to affect the commercial reasonableness of any sale of Collateral. Debtor grants to Agent the right to enter into or on any premises where Collateral may be located for the purposes of exercising any remedies upon the occurrence of an Event of Default. Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral if it takes such action for that purpose as Debtor requests in writing, but failure to do so shall not be deemed a failure to exercise ordinary care. No failure of Agent to preserve or protect any right with respect to Collateral against prior parties, or to do any act with respect to preservation of Collateral not so requested by Debtor, shall be deemed of itself a failure to exercise reasonable care in the custody or preservation of Collateral. Without limiting any other provision hereof, Debtor shall pay all related expenses, including attorneys' fees and reasonable time charges of attorneys who may be employees of Agent. If any notification of intended disposition of any of the following remedies one or more times:
A) declare this Security Agreement in defaultCollateral is required by law, such declaration being applicable notification, if mailed, shall be deemed reasonably and properly given if mailed at least ten days before such disposition, postage prepaid, addressed to all Schedules hereunder except as specifically excepted by Secured Party; B) declare Debtor at the entire amount address of unpaid total Indebtedness immediately due and payable; C) declare due and payable Debtor shown below. Agent shall, in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions limitation of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in offset under applicable law, have the right to appropriate and apply all of the Collateral shall terminate absolutelyin its possession to payment of the Liabilities. Agent may proceed to sell, and either
(i) retain all prior payments lease or otherwise dispose of Indebtedness and sell the Collateral at public or private salesale for cash or credit, and may itself make a credit bid; provided, however, that Debtor shall be credited with proceeds thereof only when the proceeds are actually received in cash by Agent, and such shall be deemed commercially reasonable. Except as and if otherwise required by law, any proceeds of the Collateral sold or without disposed of pursuant hereto shall be applied toward the Liabilities in such order as Agent shall determine in its sole discretion. Any balance remaining shall be returned to Debtor.
(c) Agent may, by written notice to Borrower, with or without having the Collateral at the saleDebtor, at any time and from time to time, waive any Event of Default or Unmatured Event of Default, which sale Secured Party may purchase all or shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of the Collateralany such waiver, the proceeds of such sale, less expenses of retaking, storage, repairing Agent and reselling, Debtor shall be restored to their former position and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtednessrights hereunder, and any surplus thereafter remaining Event of Default or Unmatured Event of Default so waived shall be deemed to be for cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Event of Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the account part of Borrower (except as otherwise Agent of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Agent herein provided under applicable are cumulative and not exclusive of any rights or remedies provided by law) or.
(iid) retain the As to any Liabilities owed to any Lender, Agent shall act as collateral agent for such Lender and shall take or refrain from taking action, and shall distribute proceeds of Collateral and all prior payments of Indebtednessother amounts recovered hereunder or under any Related Document, in satisfaction of the remaining unpaid Indebtedness;between such Agent as they shall from time to time agree. Except as and if required by law Debtor shall have no obligation or right whatsoever to inquire into any agreements or arrangements between Agent and any Agent's acting as collateral agent for any Lender.
Appears in 1 contract
Samples: Credit Agreement (Quixote Corp)
Default Remedies. If any of the following (herein an "Event of Default") shall occur:
(a) Borrower Notwithstanding any provision of any document or instrument evidencing or relating to any Secured Obligations, if Debtor is in Default under the terms of this Agreement, the Secured Obligations shall default in be immediately and automatically due and payable without action of any kind on the payment part of Indebtedness to Secured Party. Upon the occurrence and during the continuance of any Default, Secured Party may exercise any rights and remedies under this Agreement, any related document or instrument (including without limitation any pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower If any Default shall have occurred and be continuing, then, in addition to having the right to exercise any rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the payment when due State where the main office of Secured Party and/or any obligations Collateral is located, Secured Party may, in its sole discretion, exercise any rights or powers set forth in this Agreement. Upon request of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, Debtor shall promptly assemble the Collateral and such default shall continue for deliver it to a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower place designated by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or . Without limiting any other documents entered into in connection with this Security Agreement provision hereof, Debtor shall prove to be incorrect in any material respect when any such representation or warranty was made or givenpay all related expenses, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, 's attorneys' fees. If any notification of intended disposition of any of the power to direct or cause the direction of the management Collateral is required by law, such notification, if mailed, shall be deemed reasonably and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of properly given if mailed at least one-third (1/3) ten days before such disposition, postage prepaid, addressed to Debtor at the address of net worthDebtor shown below. Secured Party shall, as determined in accordance with generally accepted accounting principles) addition to and not in Borrower's financial condition; then, to the extent permitted by limitation of all rights of offset under applicable law, Secured Party shall have the right to exercise any one or more appropriate and apply all of the following remedies one or more times:
A) declare this Security Agreement Collateral in default, such declaration being applicable its possession to all Schedules hereunder except as specifically excepted by payment of the Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Obligations. Secured Party declares this Security Agreement in default, as liquidated damages may proceed to sell or loss otherwise dispose of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private salesale for cash or credit; provided, however, that Debtor shall be credited with or without notice to Borrower, with or without having proceeds of such sale only when the Collateral at the sale, at which sale proceeds are actually received by Secured Party. Secured Party may purchase all or apply any proceeds of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied Collateral to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance expenses and costs to exercise of said unpaid total IndebtednessSecured Party's rights hereunder, and any surplus thereafter balance of such proceeds shall be applied toward the Secured Obligations in such order as Secured Party shall determine in its sole discretion. Any balance remaining shall be returned to Debtor.
(c) Secured Party may, by written notice to Debtor, at any time and from time to time, waive any Default or "Unmatured Event of Default" (as defined below), which shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, Secured Party and Debtor shall be restored to their former position and rights hereunder, and any Default or Unmatured Event of Default so waived shall be deemed to be for cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the account part of Borrower (except as otherwise Secured Party of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Secured Party herein provided under applicable are cumulative and not exclusive of any rights or remedies provided by law) or
(ii) retain . "Unmatured Event of Default" means any event or condition which might become a Default with if continuing after notice or the Collateral and all prior payments passage of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;time or both.
Appears in 1 contract
Samples: Loan and Security Agreement (Dyadic International Inc)
Default Remedies. If (a) Upon the occurrence of any Event of Default specified in (a)-(k) of the following Section entitled “EVENTS OF DEFAULT,” Secured Party at its option may declare the Liabilities (herein an "principal, interest and other amounts) immediately due and payable without notice or demand of any kind, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY DEBTOR (except as and if otherwise specifically set forth herein), whereupon the entire unpaid principal balance of the Liabilities, all interest accrued thereon, and any other Liabilities shall thereupon at once mature and become due and payable. Upon the occurrence of any Event of Default specified in (l)-(m) of the Section entitled “EVENTS OF DEFAULT,” all Liabilities (principal, interest and other amounts) shall be immediately and automatically due and payable without notice, demand or other action of any kind, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY DEBTOR. Upon the occurrence of any Event of Default") shall occur:
, Secured Party may exercise any rights and remedies under this Agreement or any Related Document (a) Borrower shall default including any Related Document pertaining to collateral), and at law or in the equity. The time of payment of Indebtedness the Liabilities is also subject to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period acceleration if an Event of thirty (30) days without its cure by Borrower, orDefault occurs.
(b) Borrower If any Event of Default shall have occurred and be continuing, then, in addition to having the right to exercise any rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in Florida and any state in which any Collateral is located, Secured Party may, in its sole discretion:
(i) without being required to give any prior notice to Debtor apply the payment when due of any cash (if any) then held by it hereunder toward the Liabilities in such order as Secured Party shall determine in its sole discretion; and
(ii) if there shall be no such cash or the cash so applied shall be insufficient to pay all obligations of Borrowerin full, whether or not to Secured Partysell the Collateral, arising independently of this Security Agreement or any Notepart thereof, and such default at any public or private sale, for cash, upon credit or for future delivery, as Secured Party shall continue for a period of thirty (30) days without its cure by Borrowerdeem appropriate, or
(c) Borrower provided, however, that Debtor shall default be credited with proceeds thereof only when the proceeds are actually received in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower cash by Secured Party, or
(d) Borrower and such sale shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement be deemed commercially reasonable. Secured Party shall prove to be incorrect in any material respect when authorized at any such representation or warranty was made or given, or
sale (f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable lawit deems it advisable to do so, in its sole discretion) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral then being sold for their own account for investment and not with a view to the distribution or resale thereof, and upon consummation of any such sale Secured Party shall have the right to exercise assign, transfer and deliver to the purchasers thereof the Collateral so sold. Each such purchaser at any one such sale shall hold the property sold absolutely free from any claim or more right on the part of Debtor. Debtor hereby waives (to the following remedies one extent permitted by law) all rights of redemption, stay and/or appraisal which it now has or more times:
A) declare this Security Agreement may at any time in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount future have under any rule of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on law or before statute now existing or hereafter enacted. Secured Party declares this Security Agreement has no obligation to marshal Collateral or to clean up or otherwise prepare Collateral for sale, and may specifically disclaim any warranties as to the Collateral, including those of title, merchantability, and fitness for a particular purpose. Secured Party may comply with any applicable local, state or federal law requirements in defaultconnection with a disposition of Collateral, as liquidated damages and compliance will not be considered to affect adversely the commercial reasonableness of any sale of Collateral. Debtor grants to Secured Party the right to enter into or loss on any premises where Collateral may be located for the purposes of a bargain and not as a penalty, an amount calculated in accordance with exercising any remedies upon the provisions occurrence of paragraph 9 as though the Collateral had suffered an Event of LossDefault. Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of Collateral if it takes such action for that purpose as Debtor requests in writing, as but failure to do so shall not be deemed a failure to exercise ordinary care; no failure of Secured Party to preserve or protect any right with respect to Collateral against prior parties shall be deemed of itself a failure to exercise reasonable care in the custody or preservation of Collateral. To the extent that notice of sale shall be required to be given by law, Secured Party shall give Debtor at least ten days' written notice of any such public sale or the date after which any such private sale or sales will be held, and such notice shall be deemed commercially reasonable. Secured Party shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the date fact that notice of sale of Collateral may have been given. Secured Party declares this Security Agreement 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. In case 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 Secured Party until the sale price is paid by the purchaser thereof, but Secured Party shall not incur any liability in defaultcase any such purchaser shall fail to take up and pay for the Collateral so sold; D) declare due and payable in the amount case of any indemnification hereunder if then determinablesuch failure, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the such Collateral may be found and take possession sold again upon like notice. As an alternative to exercising the power of and remove the samesale herein conferred upon it, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all proceed by a suit at law or any of in equity to foreclose this Agreement and to sell the Collateral, the or any portion thereof, pursuant to a judgment or decree of a court of competent jurisdiction. Except as and if otherwise required by law, any proceeds of the Collateral sold or disposed of pursuant hereto shall be applied toward the Liabilities in such saleorder as Secured Party shall determine in its sole discretion. Any balance remaining shall be returned to Debtor or the party lawfully entitled thereto.
(c) Secured Party may, less expenses by written notice to Debtor, at any time and from time to time, waive any Event of retakingDefault or Unmatured Event of Default, storagewhich shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, repairing Secured Party and resellingDebtor shall be restored to their former position and rights hereunder, and reasonable attorneys' fees incurred any Event of Default or Unmatured Event of Default so waived shall be deemed to be cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Event of Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the part of Secured Party of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Secured Party herein provided are cumulative and not exclusive of any rights or remedies provided by law.
(d) As to any Liabilities owed to any Secured Party Affiliate, Secured Party shall act as collateral agent for such Secured Party Affiliate and shall take or refrain from taking action, and shall distribute proceeds of Collateral and other amounts recovered hereunder or under any Related Document between such Secured Party Affiliate and Secured Party, as they shall from time to be applied time agree. Except as and if required by law Debtor shall have no obligation or right whatsoever to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, inquire into any agreements or arrangements between Secured Party and any surplus thereafter remaining Secured Party Affiliate as to be Secured Party’s acting as collateral agent for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;any Secured Party Affiliate.
Appears in 1 contract
Default Remedies. If any of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when dueExcept as expressly and unambiguously set forth herein, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Noteshall be deemed absolute and without conditions and, and such default shall continue for a period subject to the rights of thirty (30) days the Senior Debt, the Secured Party may enforce its rights with respect to the Secured Assets without its cure by Borrower, or
(c) Borrower shall default in the performance first being required to attempt collection of any other covenant contained herein sums due from the Debtor. If an Event of Default shall occur and remain uncured (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue if it is curable by the express terms of the Note) for thirty (30) days after written receipt of notice thereof to Borrower by Debtor from the Secured Party, orthe Secured Party shall have the following rights (subject only to Section 10 of the Note and the rights of the holders of the Senior Debt generally):
(da) Borrower shall breach to perform any defaulted covenant or agreement of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or to such extent as the Secured Party shall reasonably determine and advance such moneys as it shall deem reasonably advisable for the aforesaid purpose and all moneys so advanced, together with interest thereon from the date advanced until paid at a rate per annum equal to the rate then in effect on the Note, shall be secured hereby and shall be repaid promptly after notice of the amount due without demand, provided, however, that nothing herein contained shall be construed to require the Secured Party to advance money for any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, orof the aforesaid purposes;
(fb) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of notify all account debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable lawlaw or regulations, to pay directly to the Secured Party or otherwise as the Secured Party may specify all amounts they owe then or thereafter to Debtor;
(c) to take control of any and all proceeds to which the Secured Party may be entitled under this Security Agreement, the Note, or under any applicable laws;
(d) to take immediate possession of the Secured Assets and, with or without taking possession of the Secured Assets, to sell, lease or otherwise dispose of any or all of the Secured Assets, either at public or private sale, upon commercially reasonable terms, and the Secured Party may become the purchaser thereof at public sale; provided that, any sale may be adjourned at any time and from time to time to a reasonably specified time and place by announcement at the time and place of sale as publication or otherwise of the time and place of such adjourned sale; provided further that, subject to the Senior Debt, the proceeds of any sale shall be applied (i) first to the expenses of taking, holding and preparing for sale or disposition, and sale or disposition and the like (including reasonable attorneys' fees), (ii) next to the principal and interest due under the Note and the other amounts secured under clauses (i) and (ii) of Section 3 hereof, (iii) next to amounts secured under clause (iii) of Section 3 hereof, (iv) next to the holder of any subordinate security interest therein if written notification of demand therefor is received and verified by the Debtor before distribution of the proceeds and (v) lastly, any surplus to Debtor and Debtor shall remain liable for any deficiency; and provided further that, any such sale, public or private, may be made on credit at the option of the Secured Party; and provided finally that, the Secured Party shall have the right to exercise conduct any one such sale on Debtor's premises, and the Secured Party shall have such right of possession of said premises as shall be necessary or more convenient for such purpose but the Secured Party shall make every reasonable effort to avoid (where possible) or minimize disruption of Debtor's business activities in so doing;
(e) to take immediate possession of the following remedies one Secured Assets and to use or more times:operate the Secured Assets in order to preserve the same or their value, and collect, receive and use all of the net profits from such use or operation to pay indebtedness secured by such Secured Assets;
A(f) declare this Security Agreement in defaultto require Debtor, such declaration being applicable to all Schedules hereunder except as specifically excepted by the extent practicable, to assemble the Secured Party; B) declare Assets and make them available to the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, at such locations within the county wherein such Secured Assets are located as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as Secured Party shall designate;
(g) to enter all of the date that Debtor's facilities to remove the Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found Assets therefrom and take possession of the Debtor's books and remove records and computer hardware and software, and to use all of the samesame in a manner the Secured Party deems appropriate in order to preserve and sell or otherwise dispose of the Secured Assets;
(h) to (without assuming any obligations or liability thereunder), whereupon at any time and from time to time, enforce against any licensee or sublicensee all rights and remedies of Borrower the Debtor in, to and under any patent licenses or trademark licenses included in the Collateral shall terminate absolutelyGeneral Intangibles and, in the exercise of commercial reasonableness, take or refrain from taking any action under any such licenses, and eitherthe Debtor hereby releases the Secured Party free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken under applicable law with respect thereto;
(i) retain all prior payments to proceed to protect and enforce its rights under the Note and this Security Agreement by a suit or suits in equity or at law, whether for specific performance or observance of Indebtedness any terms, provisions, covenants or conditions herein or therein contained, in aid of the execution of any power herein or therein granted, for any foreclosure hereunder or thereunder, or for the enforcement of any other proper legal or equitable remedy;
(j) to exercise any such additional and/or different rights or remedies as are provided for in the Note; and
(k) to act as true and sell lawful attorney-in-fact of the Collateral at public or private saleDebtor, with or without notice to Borrowerfull power of substitution, with full irrevocable power and authority in the place and stead of the Debtor, in the name of the Debtor, or without having in its own name, for the Collateral at purpose of carrying out the saleterms of this Security Agreement, at to take any and all appropriate action and to execute any and all documents and instruments which sale may be reasonably necessary or desirable to accomplish the purposes of this Security Agreement. The Secured Party shall have any and all other rights and remedies provided by law or equity, including, without limitation, the rights and remedies of a secured party. All of the Secured Party's rights and remedies will be cumulative, and no waiver of any default will affect any other subsequent default. The rights and remedies provided in this Security Agreement are cumulative, may purchase be exercised concurrently or separately, may be exercised from time to time and in such order, without any marshalling, as the Secured Party shall determine. Subject to the Senior Debt, nothing herein contained shall be construed as preventing the Secured Party from taking all reasonable and lawful actions to protect its interest in the event that liquidation, insolvency, bankruptcy, reorganization or foreclosure proceedings of any nature whatsoever affecting the property or assets of Debtor should be instituted. The Secured Party's sole duty with respect to the custody, safekeeping and physical preservation of the Secured Assets in its possession, shall be to deal with it in the same manner as the Secured Party deals with similar property for its own account. Neither the Secured Party, nor any of its respective directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral, Secured Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Secured Assets upon the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment request of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Debtor or otherwise.
Appears in 1 contract
Samples: Strategic Collaboration Agreement (Palatin Technologies Inc)
Default Remedies. If any In case an Actionable Default shall have occurred and be continuing, the Secured Party shall be entitled to exercise all of the following rights, powers and remedies (herein an "Event of Default") shall occur:
(a) Borrower shall default whether vested in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure it by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation Credit Transaction Document, or warranty was made or givenby law, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (and including, without limitation, all rights and remedies of a petition for reorganization, arrangement or extensionsecured party of a debtor in default under the Code) or under any other insolvency law or law providing for the relief protection and enforcement of debtorsits rights in respect of the Collateral, orand the Secured Party shall be entitled, without limitation, to exercise the following rights, which the Pledgor hereby agrees to be commercially reasonable:
(i) there isupon the declaration by the applicable Participating Creditor of any or all of the Obligations to be immediately due and payable or upon any or all of such Obligations otherwise becoming due and payable, to foreclose or otherwise enforce the Secured Party's security interest in or other Lien hereunder on any or all of the Collateral in any manner permitted by law or provided for in this Agreement;
(ii) to recover from the Pledgor all cost and expenses, including, without limitation, reasonable attorney's fees, incurred or paid by or on behalf of the prior consent Secured Party in exercising or enforcing any right, power, or remedy with respect to any or all of the Collateral provided to the Secured Party by this Agreement or by applicable law;
(iii) to receive all amounts payable in respect of the Collateral otherwise payable under Section 7 to the Pledgor and to enforce the payment of the Pledged Securities and to exercise all of the rights, powers, and remedies of the Pledgor thereunder;
(iv) to transfer all or any part of the Collateral into the Secured Party's name or the name of its nominee or nominees;
(v) to vote all or any part of the Collateral (whether or not transferred into the name of the Secured Party) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof;
(vi) at any time or from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral in one or more parcels, or any interest therein, at any public or private sale at any exchange, broker's board or at any of the Secured Party's offices or elsewhere, without, to the fullest extent permitted by law, demand of performance or advertisement of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise (all of which will are hereby expressly and irrevocably waived by the Pledgor), for cash, on credit or for other property, for immediate or future delivery without any assumption of credit risk, and for such price or prices and on such terms as the Secured Party in its sole discretion may determine; the Pledgor agrees that at least ten (10) days' notice of sale to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification; the Secured Party shall not be unreasonably withheldobligated to make any sale of Collateral regardless of notice of sale having been given; the Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and any such sale may, without further notice, be made at the time and place to which it was so adjourned; the Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshaling the Collateral and any other security for the Obligations or otherwise; at any such sale, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption; and the Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall the Secured Party be under any obligation to take any action whatsoever with regard thereto. Pledgor recognizes that the Secured Party may be unable to effect a change in control (defined to be a change public sale of the Collateral by reason of certain prohibitions contained in the possessionSecurities Act of 1933, directly as amended (the "Securities Act"), and applicable state law, and may be otherwise delayed or indirectlyadversely affected in effecting any sale by reason of present or future restrictions thereon imposed by governmental authorities, and that as a consequence of such prohibitions and restrictions the Secured Party may be compelled (i) to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof, or (ii) to seek regulatory approval of any proposed sale or sales, or (iii) to limit the amount of Collateral sold to any Person or group. The Pledgor agrees and acknowledges that private sales so made may be at prices and upon terms less favorable to Pledgor than if such Collateral was sold either at public sales or at private sales not subject to other regulatory restrictions, and that the Secured Party has no obligation to delay the sale of any of the power Collateral for the period of time necessary to direct or cause permit the direction issuer of the management and policies of BorrowerPledged Stock to register or otherwise qualify it, whether through even if such issuer would agree to register or otherwise qualify such Collateral for public sale under the ownership of voting securities, by contract Securities Act or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; thenapplicable state law. The Pledgor further agrees, to the extent permitted by applicable law, that the use of private sales made under the foregoing circumstances to dispose of the Collateral shall be deemed to be dispositions in a commercially reasonable manner. The Pledgor hereby acknowledges that a ready market may not exist for the Pledged Stock if it is not traded on a national securities exchange or quoted on an automated quotation system and agrees and acknowledges that in such event the Pledged Stock may be sold for an amount less than a pro rata share of the fair market value of the issuer's assets minus its liabilities. In addition to the foregoing, the Secured Party shall have may exercise such other rights and remedies as may be available under the right Credit Transaction Documents, at law (including without limitation the Code) or in equity;
(vii) to exercise settle, adjust, compromise and arrange all accounts, controversies, questions, claims and demands whatsoever in relation to all or any one or more part of the following remedies one or more times:Collateral;
A(viii) declare this Security Agreement to execute all such contracts, agreements, deeds, documents and instruments; to bring, defend and abandon all such actions, suits and proceedings; and to take all actions in default, such declaration being applicable relation to all Schedules hereunder except or any part of the Collateral as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in defaultits sole discretion may determine;
(ix) to appoint managers, as liquidated damages or loss agents, officers and servants for any of a bargain and not as a penalty, an amount calculated the purposes mentioned in accordance with the foregoing provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due Section 8 and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove dismiss the same, whereupon all rights as the Secured Party in its sole discretion may determine; and
(x) generally, to take all such other action as the Secured Party in its sole discretion may determine as incidental or conducive to any of Borrower the matters or powers mentioned in the Collateral shall terminate absolutely, foregoing provisions of this Section 8 and either
(i) retain all prior payments of Indebtedness and sell which the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any can do lawfully and to use the name of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable Pledgor for the balance of said unpaid total Indebtedness, purposes aforesaid and in any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;proceedings arising therefrom.
Appears in 1 contract
Default Remedies. If any Any one or more of the following events (each herein an called a "Event of Default") shall occur:
, that is to say, in case (a) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due breach of any obligations of Borrower, whether representation or not to Secured Party, arising independently of this Security Agreement warranty or any Note, and such a default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue which remains uncured for thirty (30) days after following written notice thereof shall be made in the due observance or performance of any term, covenant or condition to Borrower be observed or performed pursuant to the terms, covenants or conditions of this Assignment, or (b) the occurrence of any Event of Default under the Loan Agreement. Upon the occurrence of a Default, the Assignee may, at any time, at its election and without notice, and to the extent permitted by Secured Partylaw:
(a) Exercise any one or more of the rights or remedies set forth in the Loan Agreement or herein, and in addition, Assignee shall have full power and authority to exercise all or any one or more of the rights or remedies of a secured party under the Uniform Commercial Code of Indiana;
(b) Proceed immediately to exercise each and all of the powers, rights and privileges the Assignor may have with respect to the Development Documents or otherwise with respect to the Collateral;
(c) Proceed to protect and enforce this Assignment by suit or proceedings in equity, at law or otherwise, whether for the foreclosure hereunder or for the enforcement of any other proper, legal or equitable remedy available under applicable law; or
(d) Borrower shall breach any Without demand, notice or advertisement, all of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, are hereby expressly waived to the extent permitted by applicable law, Secured Party shall have the right to exercise any one Assignee may sell, pledge, transfer or more of the following remedies one otherwise dispose of, or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where an agreement with respect to the Collateral may be found and take possession of and remove the sameforegoing, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or otherwise realize on any of the Collateral, the proceeds of such saleor any part thereof, less expenses of retakingat public or private sales, storage, repairing and resellingor otherwise, and reasonable attorneys' fees incurred by Secured Partyat such time or times within ordinary business hours, to be applied for a purchase price or prices in cash or, without assuming any credit risk or thereby discharging the Obligations to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance extent of said unpaid total Indebtednesspurchase price until paid in cash and reserving the right to resell the Collateral upon the failure of said purchaser to so pay the purchase price therefor, upon credit or future delivery, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral upon such terms and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;conditions that Assignee deems satisfactory.
Appears in 1 contract
Default Remedies. If It shall be an "EVENT OF DEFAULT" hereunder if Debtor breaches any representation, warranty, covenant or provision hereof or of the following (herein Agreement, or defaults in the payment or performance of any Obligation; or if there exists any event or condition which, with notice and/or passage of time, would constitute a default under the Agreement or any other document, agreement or instrument evidencing an "Obligation. Upon the occurrence of an Event of Default") , Secured Party may apply any Collateral to the satisfaction of any or all of the Obligations and pursue any additional rights or remedies available to it under this Pledge Agreement or applicable law. Debtor will upon demand pay to Secured Party all expenses incurred by Secured Party in connection with the Collateral or the exercise of its rights or remedies hereunder, including without limitation, reasonable attorney's fees and other legal expenses, all of which shall occurconstitute additional Obligations secured by the Collateral hereunder. After any such Event of Default:
(a) Borrower all interest, income or dividends payable on the Collateral shall default be the sole property of and paid to Secured Party; and (b) Secured Party may at any time sell, assign and deliver, negotiate, convert, or otherwise transfer or dispose of the Collateral at or by any public or private sale in any commercially reasonable manner, and may apply the proceeds therefrom to the payment of Indebtedness to all Obligations. Debtor agrees that it shall be commercially reasonable for Secured Party to withdraw funds or in making liquidate any other payment hereunder or under any Note when dueCollateral prior to its maturity, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in notwithstanding the payment when due imposition of any obligations of Borrower, whether early withdrawal or not to Secured Party, arising independently of this Security Agreement other penalties. Debtor hereby irrevocably waives any bonds and any surety or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into security in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation the Collateral or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent exercise of Secured Party's rights or remedies hereunder that may be required by any statute, which will not be unreasonably withheld, a change in control (defined court rule or otherwise. Any notice required to be given by Secured Party of a change in the possession, directly sale or indirectly, other disposition or other intended action by Secured Party with respect to any of the power to direct Collateral or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined otherwise which is made in accordance with generally accepted accounting principlesthe terms of this Pledge Agreement at least five (5) days prior to such proposed action, shall constitute fair and reasonable notice to Debtor of any such action. Secured Party shall be liable to Debtor only for its gross negligence or willful misconduct in Borrowerfailing to comply with any applicable law imposing duties upon Secured Party; Secured Party's financial condition; thenliability for any such failure shall be limited to the actual loss suffered by Debtor directly resulting from such failure. Secured Party shall have no liability to Debtor in tort or for incidental or consequential damages. With respect to any Collateral traded on any recognized market or exchange, upon the occurrence of an Event of Default Secured Party may, to the fullest extent permitted by applicable law, sell all or any Collateral, free of rights and claims of Debtor, without notice or advertisement of any kind, on such market or exchange at a price reasonably consistent with the market price effective at the time of such sale and, notwithstanding then current fluctuations in such market price, any such sale shall be deemed reasonable for all purposes if conducted under ordinary terms regardless of the date of such sale or its proximity to the occurrence of an Event of Default. If a public sale of all or a part of any securities is restricted by reason of any provisions contained in the Securities Act of 1933, as amended (the "ACT"), or if such public sale might only occur after delay which might adversely affect the value that might be realized upon the sale of the Collateral, Secured Party may sell the Securities or any part thereof, without the necessity of registration or attempting to cause any registration of the Securities to be effected under the Act, in one or more private sales to a restricted group of purchasers who may be required to agree, among other things, that they are acquiring the Securities for thier own account for investment and not with a view to the distribution or resale thereof. Debtor acknowledges and agrees that any such private sale may be at prices or on terms less favorable to the owner of the Securities than would be the case if they were sold at public sale, and that any such private sale shall be deemed to have been made in a commercially reasonable manner. Debtor agrees that without affecting Secured Party's right to dispose of the Collateral by private sale as aforesaid, it will, upon request of Secured Party, if in the opinion of Secured Party's counsel registration of the Securities of any part thereof is required under the Act, use its best efforts to complete and cause to become effective a registration of the Securities under the Act, and to take all other actions necessary, in Secured Party's opinion, to enable Secured Party to sell, within ninety (90) days of the commencement of such best efforts, the Securities pursuant to an effective registration statement under the Act. Such best efforts shall be commenced promptly after request by Secured Party, which may be given at any time on or after the occurrence of an Event of Default. All expenses of such registration, including, without limitation, registration and filing fees, blue sky fees, printing expenses, fees and disbursements of counsel for Debtor and Secured Party, fees and expenses of auditors of Debtor and Secured Party, and all underwriter, broker or dealer discounts, and all transfer taxes shall be borne by Debtor who agrees to do all acts and things which are usual and customary in connection with registered offerings of securities, including entering into indemnification agreements with Secured Party and any underwriters. The managing underwriter of any public offering for which any said registration statement is filed shall have the right to exercise any one or more impose such conditions on the sale of the following remedies one or more times:
A) declare this Security Agreement Securities as it shall reasonably deem necessary to protect the underwritten offering, provided such conditions are similarly and proportionately imposed on other shares which may be included in default, such declaration being applicable to all Schedules hereunder except said registration as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as result of the date that Secured Party declares this Security Agreement in default; D) declare due and payable exercise of piggyback rights by the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds holders of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied to the payment of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;other shares.
Appears in 1 contract
Default Remedies. (a) If any one or more of the following events (herein an referred to as "Event Events of Default") ), shall occur:
(ai) Borrower default shall default be made in the payment due performance or observance of Indebtedness to Secured Party any provision of this Pledge Agreement;
(ii) any of the Obligations shall have become due by demand, acceleration, maturity or in making any other payment hereunder or under any Note when due, otherwise and such default Obligations have not been paid in full; or
(iii) an Event of Default (as defined in the Credit Agreement) shall continue for have occurred under the Credit Agreement;
(1) to sell or otherwise dispose of the Pledged Securities or any part thereof; (2) to vote the Pledged Securities with respect to any and all matters and to exercise all rights to payments, conversion, exchange, subscription or otherwise with respect to the Pledged Securities; and (3) to exercise any and all rights and remedies of a period of thirty (30) days without its cure by Borrower, orsecured party under the UCC.
(b) Borrower shall default To the extent permitted by any applicable law, any sale or other disposition by the Agent and/or the Lenders may be by public or private proceedings and may be made by one or more contracts, as a unit or in parcels, at such time and place, by such method, in such manner and on such terms as the payment when due Agent may determine. Except as required by law, such sale or other disposition may be made without advertisement or notice of any obligations kind or to any person. Where reasonable notification of Borrowerthe time or place of such sale or other disposition is required by law, whether such requirement shall have been met if such notice is telegraphed, sent by facsimile, cabled or not to Secured Partymailed, arising independently of this Security Agreement or any Notepostage prepaid, and such default shall continue for a period of thirty at least ten (3010) days without its cure before the time of such sale or other disposition to each person entitled thereto at such person's address as specified in Section 15 below. To the extent permitted by Borrowerany applicable law, or
(c) Borrower shall default in the performance of Agent and/or any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note Lender or any other document entered into in connection with this Security Agreement and holder of the Obligations may buy any or all of the Pledged Securities upon any public or private sale thereof. To the extent permitted by any applicable law, upon any such default sale or sales the Pledged Securities so purchased shall continue for thirty (30) days after written notice thereof to Borrower be held by Secured Partythe purchaser absolutely free from any claims or rights of whatsoever kind or nature, or
(d) Borrower shall breach including any equity of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement redemption or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in similar rights, all such equity of redemption and any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for similar rights being hereby expressly waived and released by the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, Pledgor thereof to the extent permitted by applicable law. In the event any consent, Secured Party approval or authorization of any governmental agency shall have be necessary to effectuate any such sale or sales, the right applicable Pledgor(s) shall execute, and hereby agree to exercise cause the issuer of any one Pledged Securities to execute, as necessary, all applications or more other instruments as may be required; provided that the foregoing shall not obligate such Pledgor(s) to register the Pledged Securities under the Securities Act of 1933. After deducting all reasonable costs and expenses of collection, custody, sale or other disposition or delivery (including legal costs and reasonable attorney's fees) and all other charges due against the Pledged Securities (including any charges of the following remedies one or more times:
A) declare this Security Agreement type described in defaultSection 9 below), such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount residue of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of any such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to sale or other disposition shall be applied to the payment of the unpaid total Indebtedness, Borrower remaining Obligations in the order of priorities as set forth in Section 4 of the Security Agreement. The Pledgors jointly and several shall be liable for any deficiency in payment of the balance Obligations, including all costs and expenses of said unpaid total Indebtednesscollection, custody, sale or other disposition or delivery and all other charges due against the Pledged Securities, as hereinbefore enumerated.
(c) Each Pledgor recognizes that the Lender may be unable to effect a public sale of all or a part of the Pledged Securities by reason of certain prohibitions contained in the Securities Act of 1933, but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Pledged Securities for their own account for investment and not with a view to the distribution or resale thereof. Each Pledgor agrees that private sales so made may be at a price and on other terms less favorable to the seller than if such Pledged Securities were sold at public sales, and that neither the Agent nor any surplus thereafter remaining Lender has any obligation to delay the sale of any such Pledged Securities for the period of time necessary to permit such Pledged Securities to be registered for public sale under the account Securities Act of Borrower (except as otherwise provided 1933. Each Pledgor agrees that sales made under applicable law) or
(ii) retain the Collateral and all prior payments foregoing circumstances shall not be deemed to have been made in a commercially unreasonable manner by virtue of Indebtedness, in satisfaction any sale made on terms less favorable to the seller resulting from the private nature of the remaining unpaid Indebtedness;sale.
Appears in 1 contract
Samples: Credit Agreement (Mediabay Inc)
Default Remedies. If (a) The occurrence of any of the following (herein events, for any reason, whether voluntary or involuntary, pursuant to the order of any court or other governmental authority, or otherwise, shall constitute an "Event of Default") shall occur" hereunder:
(ai) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether Secured Obligation which is not cured within any applicable cure period specified therein;
(ii) any failure to comply with any other term or not to Secured Party, arising independently provision of this Security Agreement or any Note, and such default shall continue for a period of which failure is not cured within thirty (30) calendar days after notice thereof from the Secured Party;
(iii) any other breach of, default or event of default under or failure to comply with any term or provision of this Agreement, or the Loan Agreement, which is not cured within any applicable cure period specified therein;
(iv) there exists a default under any deed of trust, lien or security agreement affecting or relating to the Collateral in favor of any person other than Secured Party or relating to obligations other than the Secured Obligations (including without its limitation in favor of Sanwa) which is not cured within any applicable cure by Borrower, period specified herein; or
(cv) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) if any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect herein is false in any material respect when any such representation or warranty was made or given, orrespect.
(fb) Borrower If any Event of Default shall have occurred and be continuing:
(i) In lieu of or in addition to exercising any other power hereby granted or otherwise available to the Secured Party, the Secured Party (without notice, demand, or declaration of default, which are hereby waived by the Grantor) may declare all unpaid Secured Obligations immediately due and payable, whereupon they shall become insolvent due and payable, and (whether or make not the Secured Obligations are so accelerated) may proceed by an assignment action or actions in equity or at law for the benefit seizure and sale of creditorsthe Collateral or any part thereof, or
(g) Borrower for the specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, for the foreclosure or sale of the Collateral or any part thereof under the judgment or decree of any court of competent jurisdiction, for the appointment or a receiver pending any foreclosure hereunder or the sale of the Collateral or any part thereof, or for the enforcement of any other appropriate equitable or legal remedy; and upon the commencement of judicial proceedings by the Secured Party to enforce any right under this Agreement, the Secured Party shall apply for or consent be entitled as a matter of right against the Grantor to the such appointment of a receiver, trustee without regard to the adequacy of the security by virtue of this Agreement or liquidator for a substantial part any other collateral or to the solvency of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, orGrantor.
(hii) a petition shall be filed by In addition to other rights and remedies provided for herein or against Borrower under otherwise available to the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, the Secured Party may exercise in respect of the Collateral all the rights and remedies of a secured party on default under the California Uniform Commercial Code, and also may (A) require the Grantor to, and the Grantor hereby agrees that, at its expense and upon request of the Secured Party, it forthwith shall, assemble all or part of the Collateral as directed by the Secured Party and make it available to the Secured Party at such places reasonably convenient to all parties as the Secured Party may designate, and (B) without notice except as specified below, sell the Collateral or any part thereof in one or more sales at public or private sales, at any of the Secured Party's offices or elsewhere, for cash, on credit, or for future delivery and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable. The Grantor agrees that, to the extent notice of sale shall be required by law, at least 5 days' notice to the Grantor of the time and place of any public sale or the time after which will any private sale is to be made shall constitute reasonable notification. The Secured Party shall not be unreasonably withheldobligated to make any sale of Collateral, a change regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by public 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 Secured Party shall have the right to become the purchaser at any public sale made pursuant to the provisions of this Section 10 and shall have the right to credit against the amount of the bid made therefor the amount payable to the Secured Party out of the net proceeds of such sale.
(iii) All cash held by the Secured Party as Collateral, and all cash proceeds received by the Secured Party in control (defined to be a change respect of any sale of, collection from, or other realization upon all or any part of the Collateral, may, in the possession, directly or indirectly, discretion of the power Secured Party, be held by the Secured Party as Collateral, and/or then or at any time thereafter, applied as follows:
(A) First, to direct or cause the direction payment of all costs and expenses incident to the enforcement of this Agreement, including, but not limited to, reasonable fees and expenses of the management agents, contractors, and policies attorneys of Borrowerthe Secured Party incurred in connection with such sale, whether through collection, or realization;
(B) Second, to the ownership payment of voting securitiesall other Secured Obligations, by contract in such order as the Secured Party may elect; and
(C) Third, the remainder, if any, to the Grantor or otherwise) to whomever may be lawfully entitled to receive such remainder; provided, however, that results in an adverse change the Grantor shall remain liable to the Secured Party for any deficiency in the BorrowerSecured Obligations remaining unpaid after the application of such proceeds as provided in this Section 10(b)(iii), and provided further that, to the extent not prohibited by applicable law, nothing herein contained shall in any way limit or restrict the Secured Party's net worth as defined rights to proceed directly against the Grantor or any other person without first causing the Secured Party to exhaust, or in Item (j) belowany manner to exercise its rights in respect of, orthe Collateral.
(jiv) there isSubject to any requirements of applicable law, based on the March 2Grantor agrees that neither the Grantor nor any of the Grantor's affiliates under its control shall at any time have or assert any right under any law pertaining to the marshalling of assets, 1995 audited financial statementsthe sale of property in the inverse order of alienation, a material adverse change (defined the administration of estates of decedents, appraisement, valuation, stay, extension, or redemption now or hereafter in force in order to be a decrease prevent or hinder the rights of at least one-third (1/3) the Secured Party or any purchaser of net worththe Collateral or any part thereof under this Agreement, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; thenand the Grantor, to the extent permitted by applicable law, hereby waives the benefit of all such laws.
(v) Upon any sale made under the powers of sale herein granted and conferred, the receipt of the Secured Party shall have be sufficient discharge to the right to exercise purchaser or purchasers at any one sale for the purchase money, and such purchaser or more purchasers, and the heirs, devisees, personal representatives, successors, and assigns thereof, shall not, after paying such purchase money and receiving such receipt of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, be obliged to be applied see to the payment of the unpaid total Indebtednessapplication thereof or be in any way answerable for any loss, Borrower remaining liable for the balance of said unpaid total Indebtednessmisapplication, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;or nonapplication thereof.
Appears in 1 contract
Samples: Security Agreement (Cinemastar Luxury Theaters Inc)
Default Remedies. If Upon the happening of any Event of Default specified in Section 4.03 hereof and before the cure thereof, Secured Party may declare all or any part of the following (herein an "Event Obligations immediately due, payable or performable, without demand, notice of Default") intention to accelerate, notice of acceleration, notice of nonpayment, presentment, protest, notice of dishonor, or any other notice whatsoever, all of which are waived by Pledgor, and apply, set off, collect, sell in one or more sales, lease, or otherwise dispose of, any or all of the Collateral, in its then condition or following any commercially reasonable preparation or processing, in such order as Secured Party may elect, and any such sale may be made either at public or private sale at its place of business or elsewhere, or at any brokers' board or securities exchange, either for cash or upon credit or for future delivery, at such price as Secured Party may deem fair, and Secured Party may be the purchaser of any or all Collateral so sold and may hold the same thereafter in its own right free from any claim of Pledgor or right of redemption. Such purchase or holding by Secured Party shall occur:
(a) Borrower shall default be deemed a retention by Secured Party in satisfaction of the payment of Indebtedness Obligations. Secured Party may enter upon Pledgor's premises to take possession of, assemble and collect the Collateral and/or Secured Party may require Pledgor to assemble the Collateral and make it available to Secured Party or in making any other payment hereunder or under any Note when dueat a place designated by Secured Party which is reasonably convenient to Secured Party and Pledgor. All demands, notices and advertisements, and such default shall continue for a period the presentment of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in property at sale are hereby waived. Notwithstanding the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable lawpreceding, Secured Party shall have give reasonable notice of any proposed sale of Collateral to Pledgor or to the right to exercise any one or more owner of the following remedies one or more times:
A) declare this Security Agreement in defaultCollateral proposed to be sold, and permit such declaration being applicable owner to all Schedules hereunder except bid to purchase such Collateral if such owner submits the highest bid, so long as specifically excepted by such owner's bid is at least as high as the amount owed to the Secured Party; B) declare . In addition, if, notwithstanding the entire amount foregoing provisions, any applicable provision of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on the Code or before other law requires Secured Party declares this Security Agreement in defaultto give reasonable notice of any such sale or disposition or other action, as liquidated damages Pledgor hereby agrees five days' prior written notice to Pledgor shall constitute reasonable notice. Any sale hereunder may be conducted by an auctioneer or loss any officer or agent of a bargain Secured Party and it shall not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though be necessary that the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of or any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may part thereof be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral present at the sale, at which sale Secured Party may purchase all or any of the Collateral, the proceeds location of such sale, less expenses of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to be applied . In addition to the payment foregoing, Secured Party may, upon the occurrence of any Event of Default, exercise any rights or remedies permitted under the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and Code or as may otherwise be available to Secured Party under any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, law or in satisfaction of the remaining unpaid Indebtedness;equity.
Appears in 1 contract
Samples: Pledge Agreement (Reo Plus, Inc.)
Default Remedies. 5.1. If any of the following occur (herein each an "“Event of Default") shall occur:
”): (a) Borrower shall default in the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(ei) any representation or warranty made by Borrower in this Security Event of Default under the Credit Agreement or any other documents entered into in connection with this Security Agreement shall prove Credit Document, (ii) the failure by any of the Pledgors to be incorrect in perform any of its obligations hereunder, (iii) the falsity, inaccuracy or material respect when breach by any such of the Pledgors of any covenant, warranty, representation or warranty was statement made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent furnished to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed Agent by or against Borrower under on behalf of such Pledgor, (iv) the Federal bankruptcy laws failure of the Agent to have a perfected first priority security interest in the Collateral (includingother than to the extent caused solely by the action or inaction of the Agent), without limitation, a petition for reorganization, arrangement (v) any restriction is imposed on the pledge or extension) or under transfer of any other insolvency law or law providing for of the relief Collateral after the date of debtors, or
(i) there is, this Agreement without the prior written consent of Secured Partythe Agent, which will not be unreasonably withheld, a change in control or (defined to be a change in vi) the possession, directly or indirectly, breach of any of the power to direct Control Agreements, or cause the direction receipt of notice of termination of any of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, Control Agreements if no successor custodian reasonably acceptable to the extent permitted by applicable lawAgent has executed a replacement Control Agreement, Secured Party shall have then the right Agent is authorized in its discretion to exercise any one or more of the following rights and remedies one granted pursuant to this Pledge Agreement or more times:
A) declare this Security Agreement given to a secured party under the Code or otherwise at law or in defaultequity, such declaration being applicable including without limitation the right to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on sell or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount otherwise dispose of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borroweradvertisement thereof, with or without having the Collateral upon such terms and conditions as it may deem advisable and at the such prices as it may deem best.
(a) At any bona fide public sale, and to the extent permitted by law, at which sale Secured Party may any private sale, the Agent or any Bank shall be free to purchase all or any part of the Collateral, free of any right or equity of redemption in the proceeds Pledgors, which right or equity is hereby waived and released. Any such sale may be on cash or credit. The Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of the sale may have been given. The Agent may adjourn any sale and sell at the time and place to which the sale is adjourned. If the Collateral is customarily sold on a recognized market or threatens to decline speedily in value, the Agent may sell such saleCollateral at any time without giving prior notice to the Pledgors. Whenever notice is otherwise required by law to be sent by the Agent to the Pledgors of any sale or other disposition of the Collateral, five (5) days written notice sent to the Pledgors at the address specified on Schedule I hereto will be reasonable. The Agent may buy any part or all of the Collateral at any public sale and, with respect to any part or all of the Collateral that is of a type customarily sold in a recognized market or is of the type which is the subject of widely-distributed standard price quotations, the Agent may buy at private sale and may make payments thereof by any means.
(b) The Pledgors recognize that the Agent may be unable to effect or cause to be effected a public sale of the Collateral by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “Act”), so that the Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgors understand that private sales so made may be at prices and on other terms less expenses of retaking, storage, repairing and resellingfavorable to the seller than if the Collateral were sold at public sales, and agrees that the Agent has no obligation to delay or agree to delay the sale of any of the Collateral for the period of time necessary to permit the issuer of the securities which are part of the Collateral (even if the issuer would agree), to register such securities for sale under the Act. The Pledgors agree that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable attorneys' fees manner.
5.3. The net proceeds arising from the disposition of the Collateral as provided herein, after deducting expenses incurred by Secured Party, to the Agent will be applied to the payment Obligations and the costs and expenses incurred by the Agent in enforcing this Pledge Agreement in the order determined by the Agent. If any excess remains after the discharge of all of the unpaid total IndebtednessObligations, Borrower remaining the same will be paid to the Pledgors. If after exhausting all of the Collateral there is a deficiency, the Pledgors will be liable therefor to the Agent and the Banks; provided, however, that nothing contained herein will obligate the Agent to proceed against any other party obligated under the Obligations or against any other collateral for the Obligations prior to proceeding against the Collateral.
5.4. If any demand is made at any time upon the Agent or any Bank for the repayment or recovery of any amount received by it in payment or on account of any of the Obligations or such Bank from the disposition of the Collateral and if the Agent or such Bank repays all or any part of such amount, the Pledgors will be and remain liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining amounts so repaid or recovered to be for the account of Borrower (except same extent as otherwise provided under applicable law) or
(ii) retain if never originally received by the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Agent or such Bank.
Appears in 1 contract
Default Remedies. If any Upon the occurrence of the following (herein an "Event of Default") shall occur:
(a) Borrower shall default in , the payment of Indebtedness to Secured Party or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right at its option and without notice or demand, to exercise any declare all Obligations secured hereby immediately due and payable, and to do one or more of the following:
(a) Foreclose or otherwise enforce the Secured Party’s security interest in any manner permitted by the UCC or other applicable Laws, or any other applicable agreement.
(b) With respect to accounts, at any time (including prior to an Event of Default) give notice of assignment to any and all obligors or account debtors under the accounts. Each Debtor hereby covenants and agrees that the Debtor will cooperate fully with the Secured Party, and its employees and agents, and will provide any and all documents deemed by the Secured Party to be necessary or desirable to collect the accounts.
(c) Collect the accounts, take possession of the Collateral, or both. Secured Party shall have the sole and exclusive right to collect the accounts following an Event of Default. The Secured Party’s actual reasonable collection expenses, including stationery and postage, telephone and telegraph, secretarial and clerical expenses, may be charged to Debtors and added to the Obligations.
(d) Receive, endorse, assign or deliver in the name of the Secured Party or any Debtor any and all checks, drafts and other instruments for the payment of money relating to the accounts, and each Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. Each Debtor hereby irrevocably appoints and designates the Secured Party or its designee as such Debtor’s attorney with power (i) at any time: (A) to endorse such Debtor’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment or Collateral; (B) to sign such Debtor’s name on any invoice or bxxx of lading relating to any of the accounts, drafts against account debtors, assignments and verifications of accounts; (C) to send verifications of accounts to any account debtor; (D) to sign such Debtor’s name on all financing statements or any other documents or instruments deemed necessary or appropriate by the Secured Party to preserve, protect, or perfect the Secured Party’s interest in the Collateral and to file same; and (E) to receive, open and dispose of all mail addressed to any Debtor; and (ii) at any time following the occurrence and during the continuance of an Event of Default: (A) to demand payment of the accounts; (B) to enforce payment of the accounts by legal proceedings or otherwise; (C) to exercise all of such Debtor’s rights and remedies with respect to the collection of the accounts and any other Collateral; (D) to settle, adjust, compromise, extend or renew the accounts; (E) to settle, adjust or compromise any legal proceedings brought to collect accounts; (F) to prepare, file and sign such Debtor’s name on a proof of claim in bankruptcy or similar document against any account debtor; (G) to prepare, file and sign such Debtor’s name on any notice of lien, assignment or satisfaction of lien or similar document in connection with the accounts; and (H) to do all other acts and things necessary to carry out this Security Agreement and any and all rights of the Secured Party. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless done maliciously or with gross (not mere) negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment); this power being coupled with an interest is irrevocable while any of the Obligations remain unpaid. The Secured Party shall have the right at any time to change the address for delivery of mail addressed to any Debtor.
(e) Sell, lease or otherwise dispose of any Collateral at one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sales, whether or not such Collateral is present at the place of sale, with for cash or without notice to Borrowercredit or future delivery, with on such terms and in such manner as the Secured Party may determine. In the event of a sale, lease or without having other disposition of the Collateral or of collection of the accounts:
(1) Any person, including any Debtor and the Secured Party, may purchase at the sale, at which .
(2) (A) In connection with any sale Secured Party may purchase all or any other dispositions of the Collateral, the proceeds of such sale, less expenses of retaking, storage, repairing and reselling, and Parties agree that without limiting any other commercially reasonable attorneys' fees incurred conduct as may be followed by the Secured Party, the following procedures shall be deemed to be applied comprise and constitute a commercially reasonable sale (hereinafter referred to as the “sale”):
(i) The Secured Party shall mail to the payment applicable Debtors written notice of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining sale not less than ten (10) days prior to be for the account of Borrower (except as otherwise provided under applicable law) orsuch sale.
(ii) retain In the Collateral and all prior payments event of Indebtednessa public sale, in satisfaction as often as (but no more than) required under the UCC immediately preceding the sale, the Secured Party will publish notice of the remaining unpaid Indebtedness;sale in an appropriate publication that the Secured Party selects. The notice will advise prospective purchasers as to where they may obtain information with respect to the Collateral.
(iii) Upon receipt of any written request to do so, the Secured Party will make available to any bona fide prospective purchaser for inspection, within five (5) Business Days following receipt of such request and during reasonable business hours, such information (including records and documents with respect to the accounts) as shall be necessary to enable a prospective purchaser to prepare a bid.
Appears in 1 contract
Samples: Security Agreement (Amrep Corp.)
Default Remedies. If Upon the occurrence of a Default, in addition to any and all other rights and remedies which Secured Party may then have hereunder, or under the Uniform Commercial Code of the following State of Texas or any other pertinent jurisdiction in which the Collateral may be located (herein an the "Event Code"), or otherwise, Secured Party may, at its option, accelerate the maturity date of Default") shall occurall of the Obligations and declare all of the same, principal, interest and fees, to be immediately due and payable, without demand, presentment, notice of intent to accelerate or notice of acceleration, all of which are hereby expressly waived by Debtor, and Secured Party may, at its option:
(a) Borrower shall default in its name or in the payment name of Indebtedness to Secured Party Debtor, demand, xxx for, collect or receive any money or property at any time payable or receivable or in making any other payment hereunder or under any Note when dueexchange for, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently of this Security Agreement or any Note, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(c) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for any compromise or consent settlement deemed desirable with respect to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable law, Secured Party shall have the right to exercise any one or more of the following remedies one or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount of any indemnification hereunder if then determinable, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all or any of the Collateral, but shall be under no obligation to do so;
(b) reduce its claim to judgment or foreclosure or otherwise enforce the proceeds Security Interests, in whole or in part, by any available judicial procedure;
(c) conduct a sale of such salethe Collateral pursuant to the Code;
(d) exercise any and all other rights, less expenses remedies and privileges it may have hereunder or under applicable law; and
(e) upon the occurrence of retakinga Default, storageDebtor hereby irrevocably makes, repairing constitutes and resellingappoints Secured Party or any of its officers or designees its true and lawful attorney-in-fact (A) to enforce all rights of Debtor under and pursuant to any agreements relating to the Collateral, and reasonable attorneys' fees incurred by all for the sole benefit of Secured Party, or (B) to enter into and perform such agreements as may be necessary in order to carry out the provisions of this Agreement, or to carry out the terms, covenants and conditions of this Agreement which are required to be applied observed or performed by Debtor, or (C) to execute such other and further grants, mortgages, pledges and assignments of the Collateral as Secured Party may reasonably require for the protecting or maintaining of the Security Interests granted to Secured Party by this Agreement, and (D) Debtor hereby ratifies and confirms all that Secured Party, as such attorney-in-fact, or its substitutes, shall do by virtue of this power of attorney. Secured Party shall not, under any circumstances or in any event whatsoever, have any liability for any error or omission or delivery of any kind incurred with respect to any instrument received in payment for the Collateral or for any damage resulting therefrom. In no event shall Secured Party be liable for any manner or thing in connection with this Agreement other than to account for moneys actually received by it in accordance with the terms hereof. Nothing contained herein to the payment contrary, Secured Party shall not be required to take any steps necessary to preserve any rights against prior parties to any of the unpaid total Indebtedness, Borrower remaining liable for the balance of said unpaid total Indebtedness, and any surplus thereafter remaining to be for the account of Borrower (except as otherwise provided under applicable law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;Collateral.
Appears in 1 contract
Default Remedies. If (a) Notwithstanding any provision of any document or instrument evidencing or relating to any Liability:
(i) upon the occurrence and during the continuance of any Event of Default specified in subsections (a)-(j) of the following Section entitled "EVENTS OF DEFAULT," Secured Party at its option may declare the Liabilities immediately due and payable without notice or demand of any kind; and (herein an ii) upon the occurrence of any Event of Default specified in subsections (k)-(l) of the Section entitled "EVENTS OF DEFAULT," the Liabilities shall be immediately and automatically due and payable without action of any kind on the part of Secured Party. Upon the occurrence and during the continuance of any Event of Default") shall occur:
(a) Borrower shall default in the payment of Indebtedness to , Secured Party may exercise any rights and remedies under this Agreement, any Related Document or other document or instrument (including any Related Document evidencing Liabilities or pertaining to Collateral), and at law or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, orequity.
(b) Borrower If any Event of Default shall have occurred and be continuing, then, in addition to having the right to exercise any rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in New York and any State in which any Collateral is located, Secured Party may, in its sole discretion:
(i) without being required to give any prior notice to Debtor apply the payment when due of any cash (if any) then held by it hereunder toward the Liabilities in such order as Secured Party shall determine in its sole discretion; and
(ii) if there shall be no such cash or the cash so applied shall be insufficient to pay all obligations of Borrowerin full, whether or not to Secured Partysell the Collateral, arising independently of this Security Agreement or any Notepart thereof, and such default at any public or private sale, for cash, upon credit or for future delivery, as Secured Party shall continue for a period of thirty (30) days without its cure by Borrowerdeem appropriate, or
(c) Borrower provided, however, that Debtor shall default be credited with proceeds thereof only when the proceeds are actually received in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower cash by Secured Party, or
(d) Borrower and such sale shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement be deemed commercially reasonable. Secured Party shall prove to be incorrect in any material respect when authorized at any such representation or warranty was made or given, or
sale (f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable lawit deems it advisable to do so, in its sole discretion) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral then being sold for their own account for investment and not with a view to the distribution or resale thereof, and upon consummation of any such sale Secured Party shall have the right to exercise assign, transfer and deliver to the purchasers thereof the Collateral so sold. Each such purchaser at any one such sale shall hold the property sold absolutely free from any claim or more right on the part of the following remedies one or more times:
ADebtor. DEBTOR HEREBY WAIVES (TO THE EXTENT PERMITTED BY LAW) declare this Security Agreement in defaultALL RIGHTS OF REDEMPTION, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before 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. Secured Party declares this Security Agreement has no obligation to marshal Collateral or to clean up or otherwise prepare Collateral for sale, and may specifically disclaim any warranties as to the Collateral, including those of title, merchantability, and fitness for a particular purpose. Secured Party may comply with any applicable local, state or federal law requirements in defaultconnection with a disposition of Collateral, as liquidated damages and compliance will not be considered adversely to affect the commercial reasonableness of any sale of Collateral. Debtor grants to Secured Party the right to enter into or loss on any premises where Collateral may be located for the purposes of a bargain and not as a penalty, an amount calculated in accordance with exercising any remedies upon the provisions occurrence of paragraph 9 as though the Collateral had suffered an Event of LossDefault. Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of Collateral if it takes such action for that purpose as Debtor requests in writing, as but failure to do so shall not be deemed a failure to exercise ordinary care; no failure of Secured Party to preserve or protect any right with respect to Collateral against prior parties, or to do any act with respect to preservation of Collateral not so requested by Debtor, shall be deemed of itself a failure to exercise reasonable care in the custody or preservation of Collateral. To the extent that notice of sale shall be required to be given by law, Secured Party shall give Debtor at least ten days' written notice of any such public sale or the date after which any such private sale or sales will be held. Secured Party shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the date fact that notice of sale of Collateral may have been given. Secured Party declares this Security Agreement 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. In case 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 Secured Party until the sale price is paid by the purchaser thereof, but Secured Party shall not incur any liability in defaultcase any such purchaser shall fail to take up and pay for the Collateral so sold; D) declare due and payable in the amount case of any indemnification hereunder if then determinablesuch failure, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the such Collateral may be found and take possession sold again upon like notice. As an alternative to exercising the power of and remove the samesale herein conferred upon it, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral at public or private sale, with or without notice to Borrower, with or without having the Collateral at the sale, at which sale Secured Party may purchase all proceed by a suit at law or any of in equity to foreclose this Agreement and to sell the Collateral, the or any portion thereof, pursuant to a judgment or decree of a court of competent jurisdiction. Except as and if otherwise required by law, any proceeds of such sale, less expenses the Collateral sold or disposed of retaking, storage, repairing and reselling, and reasonable attorneys' fees incurred by Secured Party, to pursuant hereto shall be applied toward the Liabilities in such order as Secured Party shall determine in its sole discretion. Any balance remaining shall be returned to Debtor.
(c) Secured Party may, by written notice to Debtor, at any time and from time to time, waive any Event of Default or Unmatured Event of Default, which shall be for such period and subject to such conditions as shall be specified in any such notice. In the payment case of the unpaid total Indebtednessany such waiver, Borrower remaining liable for the balance of said unpaid total IndebtednessSecured Party and Debtor shall be restored to their former position and rights hereunder, and any surplus thereafter remaining Event of Default or Unmatured Event of Default so waived shall be deemed to be for cured and not continuing; but no such waiver shall extend to or impair any subsequent or other Event of Default or Unmatured Event of Default. No failure to exercise, and no delay in exercising, on the account part of Borrower (except as otherwise Secured Party of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of Secured Party herein provided under applicable are cumulative and not exclusive of any rights or remedies provided by law) or
(ii) retain the Collateral and all prior payments of Indebtedness, in satisfaction of the remaining unpaid Indebtedness;.
Appears in 1 contract
Default Remedies. (a) Except as expressly and unambiguously set forth herein, this Security Agreement shall be deemed absolute and without conditions, and upon an Event of Default the Secured Party may enforce its rights with respect to the Secured Assets without first being required to attempt collection of any sums due from the Debtor. If any an Event of Default shall occur and remain uncured (if it is curable by the express terms of the Note) for sixty (60) days after receipt of notice thereof by Debtor from the Secured Party, the Secured Party shall have the following (herein an "Event of Default") shall occurrights:
(ai) Borrower shall default in the payment of Indebtedness to Secured Party perform any defaulted covenant or in making any other payment hereunder or under any Note when due, and such default shall continue for a period of thirty (30) days without its cure by Borrower, or
(b) Borrower shall default in the payment when due of any obligations of Borrower, whether or not to Secured Party, arising independently agreement of this Security Agreement or any to such extent as the Secured Party shall reasonably determine and advance such moneys as it shall deem reasonably advisable for the aforesaid purpose and all moneys so advanced, together with interest thereon from the date advanced until paid at a rate per annum equal to the rate then in effect on the Note, shall be secured hereby and such default shall continue be repaid promptly after notice of the amount due without demand, provided, however, that nothing herein contained shall be construed to require the Secured Party to advance money for a period any of thirty (30) days without its cure by Borrower, orthe aforesaid purposes;
(cii) Borrower shall default in the performance of any other covenant contained herein (including any Schedule hereto), any Certificate in respect hereof or any Note or any other document entered into in connection with this Security Agreement and such default shall continue for thirty (30) days after written notice thereof to Borrower by Secured Party, or
(d) Borrower shall breach any of its insurance obligations under paragraph 10 hereof,
(e) any representation or warranty made by Borrower in this Security Agreement or any other documents entered into in connection with this Security Agreement shall prove to be incorrect in any material respect when any such representation or warranty was made or given, or
(f) Borrower shall become insolvent or make an assignment for the benefit of creditors, or
(g) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator for a substantial part of its property or such receiver, trustee or liquidator is appointed without the application or consent of Borrower, or
(h) a petition shall be filed by or against Borrower under the Federal bankruptcy laws (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of notify all account debtors, or
(i) there is, without the prior consent of Secured Party, which will not be unreasonably withheld, a change in control (defined to be a change in the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Borrower, whether through the ownership of voting securities, by contract or otherwise) that results in an adverse change in the Borrower's net worth as defined in Item (j) below, or
(j) there is, based on the March 2, 1995 audited financial statements, a material adverse change (defined to be a decrease of at least one-third (1/3) of net worth, as determined in accordance with generally accepted accounting principles) in Borrower's financial condition; then, to the extent permitted by applicable lawlaw or regulations, to pay directly to the Secured Party shall have or otherwise as the right Secured Party may specify all amounts they owe then or thereafter to exercise Debtor until such time as the Secured Party has received all amounts to which it is entitled under the Note and this Security Agreement;
(iii) to take control of any one and all proceeds to which the Secured Party may be entitled under this Security Agreement, the Note, or more under any applicable laws;
(iv) to take immediate possession of the following remedies one Secured Assets and, with or more times:
A) declare this Security Agreement in default, such declaration being applicable to all Schedules hereunder except as specifically excepted by Secured Party; B) declare the entire amount of unpaid total Indebtedness immediately due and payable; C) declare due and payable in addition to any unpaid Indebtedness due on or before Secured Party declares this Security Agreement in default, as liquidated damages or loss of a bargain and not as a penalty, an amount calculated in accordance with the provisions of paragraph 9 as though the Collateral had suffered an Event of Loss, as without taking possession of the date that Secured Party declares this Security Agreement in default; D) declare due and payable the amount Assets, to sell, lease or otherwise dispose of any indemnification hereunder if then determinableor all of the Secured Assets, with interest as provided herein; E) upon notice to any lessees or sublessees permitted pursuant to paragraph 6(a) to obtain and retain all rentals thereafter due, paid and/or payable; F) without demand or legal process enter into premises where the Collateral may be found and take possession of and remove the same, whereupon all rights of Borrower in the Collateral shall terminate absolutely, and either
(i) retain all prior payments of Indebtedness and sell the Collateral either at public or private sale, with or without notice to Borrowerupon commercially reasonable terms, with or without having and the Collateral at the sale, at which sale Secured Party may purchase all become the purchaser thereof at public sale; provided that, any sale may be adjourned at any time and from time to time to a reasonably specified time and place by announcement at the time and place of sale or any by publication or otherwise of the Collateraltime and place of such adjourned sale; provided further that, the proceeds of any sale shall be applied (1) first to the expenses of taking, holding and preparing for sale or disposition, and sale or disposition and the like (including reasonable attorneys' fees), (2) next to the principal and interest due under the Note and the other amounts secured under clauses (i) and (ii) of Section 3 hereof, (3) next to amounts secured under clause (iii) of Section 3 hereof, (4) next to the holder of any subordinate security interest therein if written notification of demand therefor is received and verified by the Debtor before distribution of the proceeds and (5) lastly, any surplus to Debtor and Debtor shall remain liable for any deficiency; and provided finally that, any such sale, less expenses public or private, may be made on credit at the option of retaking, storage, repairing the Secured Party;
(v) to take immediate possession of the Secured Assets and resellingto use or operate the Secured Assets in order to preserve the same or their value, and reasonable attorneys' fees incurred collect, receive and use all of the net profits from such use or operation to pay indebtedness secured by such Secured PartyAssets; provided that, any continuing royalties or other similar amounts derived from the commercial sale of any products developed from the Secured Assets (as opposed to the sale of any products deriving from intellectual property that may be developed by the Secured Party after the termination hereof or after such time as there shall be the occurrence of an Event of Default hereunder, whichever occurs first) shall be deemed to be applied to the payment Operating Margin for purposes of Section 8.6 of the unpaid total IndebtednessStrategic Collaboration Agreement; provided further that, Borrower remaining liable for any sale or license by the balance Secured Party of said unpaid total Indebtedness, and any surplus thereafter remaining intellectual property included in the Secured Assets to any third party shall be deemed to be solely for the account of Borrower the Secured Party and not in any manner or portion for the account of Debtor or distributable to Debtor under and pursuant to the terms of the Strategic Collaboration Agreement;
(except vi) to require Debtor, to the extent practicable, to assemble the Secured Assets and make them available to the Secured Party at such locations as the Secured Party shall reasonably designate;
(vii) to enter all of the Debtor's facilities to remove the Secured Assets therefrom and take possession of the appropriate portions of the Debtor's books and records and computer hardware and software, and to use all of the same in a manner the Secured Party deems appropriate in order to preserve and sell or otherwise provided dispose of the Secured Assets;
(viii) to (without assuming any obligations or liability thereunder), at any time and from time to time, enforce against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any patent licenses or trademark licenses included in the Secured Assets and, in the exercise of commercial reasonableness, take or refrain from taking any action under any such licenses, and the Debtor hereby releases the Secured Party free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken under applicable law) orlaw with respect thereto;
(iiix) retain to proceed to protect and enforce its rights under the Collateral Note and this Security Agreement by a suit or suits in equity or at law, whether for specific performance or observance of any terms, provisions, covenants or conditions herein or therein contained in aid of the execution of any power therein or herein granted, for any foreclosure hereunder or thereunder, or for the enforcement of any other proper legal or equitable remedy;
(x) to exercise any such additional and/or different rights or remedies as are provided for in the Note; and
(xi) to act as true and lawful attorney-in-fact of the Debtor, with full power of substitution, with full irrevocable power and authority in the place and stead of the Debtor, in the name of the Debtor, or in its own name, for the purpose of carrying out the terms of this Security Agreement, to take any and all prior payments appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the purposes of Indebtednessthis Security Agreement.
(b) The Secured Party shall have any and all other rights and remedies provided by law or equity, in satisfaction including, without limitation, the rights and remedies of a secured party. All of the remaining unpaid Indebtedness;Secured Party's rights and remedies will be cumulative, and no waiver of any default will affect any other subsequent default. The rights and remedies provided in this Security Agreement are cumulative, may be exercised concurrently or separately, may be exercised from time to time and in such order, without any marshalling, as the Secured Party shall determine. Nothing herein contained shall be construed as preventing the Secured Party from taking all reasonable and lawful actions to protect its interest in the event that liquidation, insolvency, bankruptcy, reorganization or foreclosure proceedings of any nature whatsoever affecting the property or assets of Debtor should be instituted. The Secured Party's sole duty with respect to the custody, safekeeping and physical preservation of the Secured Assets in its possession, shall be to deal with it in the same manner as the Secured Party deals with similar property for its own account. Neither the Secured Party, nor any of its respective directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Secured Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Secured Assets upon the request of the Debtor or otherwise.
Appears in 1 contract
