General Remedies. Upon the occurrence of an Event of Default and during continuation thereof, the Collateral Agent shall have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and place.
Appears in 3 contracts
Samples: Pledge Agreement, Pledge Agreement (Huron Consulting Group Inc.), Pledge Agreement (Huron Consulting Group Inc.)
General Remedies. Upon In addition to and without in any way limiting any other rights and remedies available to the occurrence Lender under this Agreement prior to an Event of Default, or any other rights and remedies available to the Lender (whether prior to or after an Event of Default) under any of the other Financing Documents or under applicable law or in equity, upon and during the continuance of an Event of Default and during continuation thereof, Default:
(a) the Lender may decline to honor the credit of the Borrower or may refuse to make further advances to the Borrower;
(b) the Lender may collect the Accounts with or without taking possession of the Collateral;
(c) the Lender shall be entitled to immediate possession of the Collateral Agent shall haveor any portion or portions thereof and may, in addition so far as the Borrower can give authority therefor, enter upon the Borrower's premises to take possession thereof; may require the Borrower to assemble the Collateral and make it available to the rights and remedies provided herein, in Lender at a place to be designated by the Loan Documents, in any other documents Lender which is reasonably convenient to both parties; or may require the Borrower to deliver all Records relating to the Secured ObligationsCollateral to the Lender;
(d) the Lender may enter upon, occupy, and use any premises owned or occupied by the Borrower (or by any agent of the Borrower at which Collateral is located), and may exclude the Borrower from such premises or portion thereof as may have been so entered upon, occupied, or used by Law the Lender; the Lender shall not be required to remove any of the Collateral from any such premises upon the Lender's taking possession thereof, and may render any Collateral unusable to the Borrower; and in no event shall the Lender be liable to the Borrower for use or occupancy by the Lender of any premises pursuant to this Agreement except for claims arising out of the Lender's negligence, bad faith or willful misconduct, nor for any charge (including levy such as wages for the Borrower's employees and utilities) incurred in connection with the Lender's exercise of attachmentthe Lender's rights and remedies;
(e) the Lender may take such steps as it deems necessary to protect the Lender's interest in, garnishment and to preserve the Collateral, and the rights and remedies set forth in the UCC Borrower agrees to cooperate fully with all of the jurisdiction applicable Lender's efforts and to take such actions as the affected Lender shall direct, all to preserve the Collateral), ;
(f) the Lender shall have the rights and remedies of a secured party under the UCC (regardless and other applicable laws, the choice and manner of whether exercise of any right or remedy being in the UCC is Lender's sole discretion; and, pursuant thereto, the law Lender shall have the right to foreclose the security interest granted in any Collateral by any available judicial procedure and to take possession of and sell any or all of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process process; the Lender may lease or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each otherwise dispose of the Pledgors hereby waives to Collateral, or may sell the fullest extent permitted by LawCollateral, at or any place and time or timespart thereof, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof)sales, at any exchange time or broker’s board or elsewhere, by one or more contractsplace (including the Borrower's premises), in one or more parcelssales, at such price or prices, and upon such terms, either for cash, upon credit or otherwisefuture delivery, at such prices and upon such terms as the Lender may elect, and, except as to that part of the Collateral Agent deems advisablewhich is perishable or threatens to decline speedily in value, or is of the type customarily sold on a recognized market, the Lender shall give the Borrower reasonable notification of such sale or sales, it being agreed that, in its all events, reasonable discretion notification means written notice mailed to the Borrower at least ten (subject 10) days prior to any and all mandatory legal requirements). Each Pledgor acknowledges that each such public sale or at least ten (10) days prior to the date after which any such private sale sales or other intended dispositions may be made; at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a any public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent Lender may (but shall have no obligation to delay sale to) bid for and become the purchaser of any such securities for Collateral; the period Borrower hereby waives any and all rights it may have to judicial hearing in advance of time necessary the enforcement of any of the Lender's rights hereunder, including the Lender's right to permit take immediate possession of the issuer Collateral; and the Lender may do any of such securities to register such securities for public sale under the Securities Act of 1933. Neither foregoing or otherwise deal with the Collateral Agent’s compliance in its then condition, or following such preparation as the Lender deems advisable, with applicable Law nor its disclaimer of warranties relating or without taking possession thereof;
(g) the Lender shall have the right to apply to the Collateral shall be considered to adversely affect Obligations any deposits or other sums at any time credited by or due from the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, Lender to the Pledgors in accordance with Borrower; and
(h) the notice provisions of Section 11.02 Lender may treat any or all of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent Financing Documents as being in default and may adjourn exercise any public or private sale from time to time by announcement at the time rights and place fixed therefor, and such sale may, without further notice, be made at the time and place to which remedies thereunder as it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and placedeem appropriate.
Appears in 3 contracts
Samples: Security Agreement (Ariad Pharmaceuticals Inc), Security Agreement (Ariad Pharmaceuticals Inc), Security Agreement (Ariad Pharmaceuticals Inc)
General Remedies. Upon the occurrence and during the continuance of an ---------------- Event of Default, Mortgagee may peform or direct Trustee to perform any one or more of the following acts, subject to and in accordance with any applicable provision of the Credit Agreements and to any mandatory requirements or limitations of applicable law then in force:
(a) exercise all of the rights, remedies, powers and privileges of Mortgagors with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, Mortgagors would otherwise be entitled to give or withhold and perform or attempt to perform any covenants in this Mortgage which Mortgagors are obligated to perform; provided that no payment or performance by Mortgagee shall constitute a waiver of any Event of Default and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance or which Mortgagee may pay.
(b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of Mortgagors in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property.
(c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law.
(d) if Mortgagors have failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and Mortgagors promise, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default.
(e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by Mortgagors, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law.
(f) Upon the occurrence of an Event of Default and during continuation thereofDefault, the Collateral Agent shall have, in addition this Mortgage may be foreclosed as to the rights and remedies provided hereinMortgaged Properties, in the Loan Documentsor any part thereof, in any other documents relating to the Secured Obligations, or manner permitted by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral)law. Mortgagee may request Trustee to, and further, the Collateral Agent may, with or without judicial process or the aid in such event Trustee is hereby authorized and assistance of others, without demand empowered and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution his or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and her special duty upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject request of Mortgagee and to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Lawlaw, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption proceed with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of foreclosure and sell all or any portion part of the Collateral Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by announcement applicable law or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the time and place courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such saleday, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Trustee may, without further noticein his or her sole discretion, to the extent permitted by Lawapplicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be made deemed to require Mortgagee or Trustee to do, and Mortgagee and Trustee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of Mortgagors, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon Mortgagors. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce or direct Trustee to enforce (as provided by applicable law) the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the sale was postponedSecured Indebtedness), or the Collateral Agent Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may further postpone sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by announcement made this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at such time its sole election, to request Trustee to sell less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and place.is hereby authorized to make resale
Appears in 3 contracts
Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.), Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.), Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.)
General Remedies. Upon In addition to the occurrence remedies set forth in Section 4.2 of this Mortgage, if an Event of Default shall have occurred and during continuation thereofbe then in existence, Mortgagee may take such action, without notice or demand, as it shall deem advisable to protect and enforce its rights against Mortgagor and in and to the Collateral or any part thereof or interest therein, including, but not limited to, the Collateral Agent shall havefollowing actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Mortgagee may determine, in addition to its sole discretion, without impairing or otherwise affecting the other rights and remedies provided hereinof Mortgagee: (i) enter into or upon the Collateral, either personally or by its agents, nominees or attorneys and dispossess Mortgagor and its agents and servants therefrom, and thereupon Mortgagee may (A) use, operate, manage, control, insure, maintain, repair, restore, harvest and sell Timber and otherwise deal with all and every part of the Collateral and conduct the business thereat, (B) complete any construction on the Collateral in such manner and form as Mortgagee deems advisable, (C) make alterations, additions, renewals, replacements and improvements to or on the Collateral, (D) exercise all rights and powers of Mortgagor with respect to the Collateral, whether in the Loan Documentsname of Mortgagor or otherwise, in any including, without limitation, the right to make, cancel, enforce or modify, timber sales contracts, stumpage sale agreements, leases, and other documents relating agreements and demand, sxx for, collect and receive all earnings, revenues, rents, issues, profits and other income of the Collateral and every part thereof and (E) receive and collect the receipts from the Collateral, give proper receipts, releases and acquittances therefore, and apply the same to the payment of the Secured Obligations, or by Law after deducting therefrom all expenses (including levy of attachmentreasonable attorneys’ fees and expenses) incurred in connection with the aforesaid operations and all amounts necessary to pay the taxes, garnishment assessments, insurance and other charges in connection with the rights Collateral, as well as just and remedies set forth in reasonable compensation for the UCC services of the jurisdiction applicable to Mortgagee and its counsel, agents and employees, or (ii) institute proceedings for the affected Collateral), the rights and remedies complete foreclosure of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, this Mortgage in which case the Collateral Agent may, with may be sold for cash or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, upon credit in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (iiiii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale with or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further noticeentry, to the extent permitted and pursuant to the procedures provided by applicable Law, be made at institute proceedings for the time partial foreclosure of this Mortgage for the portion of the Secured Obligations then due and place payable, subject to which the sale was postponedcontinuing Lien of this Mortgage for the balance of the Secured Obligations not then due, or (iv) sell for cash or upon credit the Collateral Agent may further postpone such or any part thereof and all or any part of any estate, claim, demand, right, title and interest of Mortgagor therein and rights of redemption thereof, pursuant to power of sale by announcement made or otherwise, at one or more sales, as an entirety or in parcels, at such time and place, upon such terms and after such notice thereof as may be required or permitted by Law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Collateral, this Mortgage shall continue as a Lien on the remaining portion of or estate in the Collateral, or (v) institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein or in the Notes or any other Loan Document, or (vi) recover judgment on the Notes or any guaranty either before, during or after any proceedings for the enforcement of this Mortgage or (vii) pursue such other remedies as Mortgagee may have under applicable Law or equity. Further, once Mortgagee has exercised any of its rights or remedies hereunder, or under the Loan Documents, during the existence of an Event of Default, all actions theretofore or thereafter taken by Mortgagee in pursuit of such rights and remedies shall not be affected by any cure of such Event of Default, unless Mortgagee shall accept the cure and terminate pursuit of any such right or remedy, in which case, the parties shall be restored to their position which existed prior to Mortgagee’s exercise of its rights or remedies.
Appears in 1 contract
General Remedies. Upon the occurrence of an Event of Default and during continuation thereof---------------- under this Mortgage, the Collateral Agent shall haveLender may, at its continuing option, and without notice to or demand upon the Mortgagor:
(a) Enter onto the Mortgaged Property, in addition person or by agents or by court-appointed receiver, and take possession thereof and exclude the Mortgagor and the Mortgagor's agents and employees wholly therefrom, and upon demand of Lender, Mortgagor shall forthwith surrender to Lender actual possession of the Mortgaged Property, and upon every such entering and taking of possession, the Lender may hold, store, use, operate, manage, control and maintain the Mortgaged Property and conduct the business thereon and, from time to time, (i) make or perform all necessary and proper construction, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional fixtures, personal and other property; (ii) insure or keep the Mortgaged Property insured; (iii) manage and operate the Mortgaged Property and exercise all the rights and remedies provided herein, powers of Mortgagor in the Loan Documents, in any other documents relating its name or otherwise with respect to the Secured Obligations, or by Law same; and (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject to iv) enter into any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable agreements with respect to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale exercise by others of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise powers herein granted to the requirement of such notice. The Collateral Agent Lender, all as Lender may adjourn any public or private sale from time to time by announcement at determine to be to its best interest. Further, Lender may collect and receive all of the time income, rents, profits, issues, revenues and place fixed thereforaccounts of or related to the Mortgaged Property, including those past due as well as those accruing thereafter, and Lender may apply any monies and proceeds received by Lender in such sale mayorder and priority as Lender in its sole discretion may determine to all expenses of taking, without further noticeholding, managing and operating the Mortgaged Property (including compensation for the services of all persons employed for such purposes), to the cost of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, to the cost of such insurance, to such taxes, assessments and other charges as Lender may determine to pay, to other proper charges upon the Mortgaged Property or any part thereof, to the reasonable compensation and expenses of attorneys and agents of the Lender, to accrued interest, to deposits for taxes, insurance and similar items required hereunder, and to overdue installments of principal. For the purposes of carrying out the provisions of this Subsection (a), Mortgagor hereby irrevocably constitutes and appoints Lender as Mortgagor's agent and attorney-in-fact to do and perform, from time to time, any and all actions necessary or incidental to such purpose and does, by these presents, ratify and confirm any and all actions of said attorney-in-fact in the Mortgaged Property. Whenever all Events of Default have been cured and satisfied, Lender shall surrender possession of the Mortgaged Property to Mortgagor, provided that the right of Lender to take possession, from time to time, pursuant to this Section shall exist if any subsequent Event of Default shall occur and be made continuing;
(b) Bring a court action at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been law or in equity (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New Yorkto foreclose this Mortgage, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in to enforce its provisions or any of the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933indebtedness or obligations secured by this Mortgage, and (iii) to enforce Lender's rights and remedies under any or all guaranties, security agreements, assignments and other instruments and agreements evidencing or securing the Collateral Agent mayNote, in such eventor to do any or all of the foregoing, bid for the purchase of such securities. The Collateral Agent concurrently or otherwise, and one action or suit shall not xxxxx or be obligated a bar to make or waiver of Lender's right to. institute or maintain any sale other, or other disposition constitute an election of remedies by Lender, provided that Lender shall have only one payment and satisfaction of the Collateral regardless of notice having been givenindebtedness;
(c) Exercise any other right or remedy available at law or in equity;
(d) Bid at any foreclosure sale and purchase the Mortgaged Property, or any part thereof, if the highest bidder therefor. To At the extent permitted by applicable Law, any holder of Secured Obligations foreclosure sale the Mortgaged Property may be offered for sale and sold as a purchaser at whole without first offering it in any such sale. To the extent permitted by applicable Law, each other manner or may be offered for sale and sold in any other manner Lender may elect in its sole discretion without regard to principles of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and placemarshalling.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Efficiency Lodge Inc)
General Remedies. The Collateral Trustee’s exercise of rights and remedies in respect of the Collateral shall be subject in all cases to the terms of the Intercreditor Agreement, the Collateral Trust Agreement and the Collateral Trustee’s receipt of direction and indemnity with respect thereto. Upon the occurrence of an Event of a Parity Lien Debt Default and during the continuation thereof, the Collateral Agent Trustee shall have, in addition to the rights and remedies provided herein, in the Loan Parity Lien Documents, in any other documents relating to the Secured Parity Lien Obligations, or by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected CollateralUCC), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent Trustee may, with or without judicial process or the aid and assistance of others, enter on any premises on which any of the Collateral may be located and, without resistance or interference by the Obligors, take possession of the Collateral, (ii) dispose of any Collateral on any such premises, (iii) upon ten (10) days written notice, require the Obligors to assemble and make available to the Collateral Trustee at the expense of the Obligors any Collateral at any place and time designated by the Collateral Trustee which is reasonably convenient to both parties, (iv) remove any Collateral from any such premises for the purpose of effecting sale or other disposition thereof, or (v) without demand and without advertisement, notice, hearing or process of lawlaw (except any notice required by law referred to below or expressly required herein or pursuant to any Parity Lien Document) to or upon any Obligor, all of which each of the Pledgors Obligors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof)sale, at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent Trustee deems advisable, in its reasonable sole discretion (subject to any and all mandatory legal requirements). Each Pledgor Obligor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall not be deemed to have been made in a commercially reasonable unreasonable manner and, in solely because of the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer private nature of such securities to register such securities for public sale under the Securities Act of 1933sale. Neither the Collateral AgentTrustee’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor Obligor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, notice is personally served on or mailedon, sent by mail, postage prepaid, or sent by nationally-recognized overnight delivery service to the Pledgors Parent in accordance with the notice provisions of Section 11.02 7.6 of the Credit Collateral Trust Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent Trustee shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Parity Lien Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent Trustee may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent Trustee may further postpone such sale by announcement made at such time and place.
Appears in 1 contract
General Remedies. Upon the occurrence of an If any Event of Default specified in Section 7.3 shall occur, Lender may, at its option and during continuation thereofwithout notice:
(a) declare the entire Advance, the Collateral Agent shall have, in addition to the rights Interest and remedies provided herein, in the Loan Documents, in any all other documents relating to the Secured Obligations, or any part thereof, immediately due and payable (provided that the Minimum Interest used to determine the Interest in such event will be the maximum Minimum Interest determined in accordance with Schedule 10.3, which will include all actual adjustments to the Minimum Interest in accordance with the terms of this Agreement, but will exclude speculative adjustments);
(b) exercise any and all other legal or equitable rights afforded by Law (including levy of attachment, garnishment the Transaction Documents and the rights and remedies set forth laws of the Applicable Jurisdiction or any other jurisdiction as Lender shall deem appropriate; and
(c) take any action permitted by this Agreement or by applicable law, including the Uniform Commercial Code then in effect in the UCC Applicable Jurisdiction, to satisfy the Obligations of the jurisdiction applicable Company Entities owed to Lender, including, but not limited to:
(i) Without limiting the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law generality of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral)foregoing Lender, and further, the Collateral Agent may, with or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Lawapplicable law, without notice, hearing or process except as specified below, take possession and maintain control over the Collateral. Within two days following demand by Lxxxxx for possession and control of the Collateral following an Event of Default, each Company Entity shall, at any place its sole cost and time or timesexpense, sell assemble and deliver any or turn over to Lender all Collateral of such Company Entity then held by such Company Entity.
(ii) Lender may in its sole discretion sell the Collateral or for it any part thereof in one or more parcels at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcelssale, for cash, upon on credit or otherwisefor future delivery, at such prices and upon such other terms as Lender may deem commercially reasonable, and Lender may purchase all or any part of the Collateral Agent deems advisableat public or, if permitted by law, private sale, and in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case lieu of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer actual payment of such securities to register such securities for public sale under purchase price, may set off the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement amount of such noticepurchase price against the Obligations. The Collateral Agent Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further with notice, be made at the time and place to which it was so adjourned. Lender may abandon any such proposed sale. Each Pledgor further Company Entity acknowledges and that any private sales of Collateral effected by Lender may result in terms less favorable to a seller than public sales but each Company Entity agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above private sales shall nevertheless be deemed to involve a “public sale” under the UCCcommercially reasonable. The Company Entities shall pay all reasonable costs, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933fees and expenses incurred by Lxxxxx, including reasonable attorney’s fees and the Collateral Agent maycourt costs, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at connection with any such sale. To the extent permitted by applicable Law, each .
(iii) Lender may enter upon and into and take possession of all or such part or parts of the Pledgors hereby waives all properties owned or occupied by any Company Entity, including lands, buildings, equipment and other property as may be necessary or appropriate in the judgment of its rights of redemption with respect Lender to any such sale. Subject permit or enable Lender to complete the provisions of applicable Law, the Collateral Agent may postpone processing or cause the postponement of the sale collection of all or any portion part of the Collateral by announcement at the time and place of such saleas Lender may elect, and use and operate such sale may, properties for such purposes and for such length of time as Lender may deem reasonably necessary or appropriate for such purposes without further notice, the payment of any compensation to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and placeany Company Entity therefor.
Appears in 1 contract
Samples: Revenue Loan and Security Agreement (Pineapple Energy Inc.)
General Remedies. Upon the occurrence All of an Event of Default and during continuation thereof, the Collateral Agent shall have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law or under other Applicable Law, and all other legal and equitable rights to which Lender may be entitled under any of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of lawLoan Documents, all of which each rights and remedies shall be cumulative and shall be in addition to any other rights or remedies contained in this Agreement or any of the Pledgors hereby waives other Loan Documents, and none of which shall be exclusive.
(i) The right to collect all amounts at any time payable to any Borrower from any Account Debtor or other Person at any time indebted to any Borrower.
(ii) The right to take immediate possession of the fullest extent permitted by LawCollateral, and to (i) require Borrowers to assemble the Collateral, at Borrowers' expense, and make it available to Lender at a place designated by Lender which is reasonably convenient to both parties, and (ii) enter any place premises where any of the Collateral shall be located and time to keep and store the Collateral on said premises until sold (and if said premises be the Property of a Borrower, then such Borrower agrees not to charge Lender for storage thereof).
(iii) The right to sell or timesotherwise dispose of all or any Collateral in its then condition, sell and deliver or after any further manufacturing or all Collateral held by or for it processing thereof, at public or private sale (which or sales, with such notice as may be required by Applicable Law, in the case lots or in bulk, for cash or on credit, all as Lender, in its sole discretion, may deem advisable. Borrowers agree that any requirement of a notice to Borrowers or any other Obligor of any proposed public or private sale or other disposition of Pledged Equity, Collateral by Lender shall be deemed reasonable notice thereof if given at least 10 days prior thereto, and such sale may be at such locations as Lender may designate in said notice. Lender shall have the right to a restricted group conduct such sales on any Borrower's premises, without charge therefor, and such sales may be adjourned from time to time in accordance with Applicable Law. Lender shall have the right to sell, lease or otherwise dispose of purchasers who will be obligated to agreethe Collateral, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale any part thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwiseany combination thereof, at such prices and upon such terms as Lender may purchase all or any part of the Collateral Agent deems advisableat public or, in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such if permitted by law, private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding in lieu of actual payment of such purchase price, may set off the foregoingamount of such price against the Obligations. If Lender shall dispose of any Inventory by foreclosure sale to any supplier having repurchase rights with respect thereto under any Distribution Agreement for an amount that is equal (or approximately equal) to the repurchase price set forth in such Distribution Agreement, agrees that then such private foreclosure sale shall be deemed to have been made in a be commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such noticeas between Lender and all Obligors. The Collateral Agent may adjourn any public or private sale proceeds realized from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the any Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To applied, after allowing 2 Business Days for collection, first to the extent permitted costs, expenses and attorneys' fees incurred by applicable LawLender in collecting the Obligations, each of in enforcing the Pledgors hereby waives all of its rights of redemption Lender under the Loan Documents and in collecting, retaking, completing, protecting, removing, storing, advertising for sale, selling and delivering any Collateral, second to interest accrued with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time Obligations; and place of such sale, and such sale may, without further noticethird, to the extent permitted by Lawprincipal of the Obligations. If any deficiency shall arise, be made at each Borrower and each Guarantor shall remain jointly and severally liable to Lender therefor.
(iv) The right to exercise all of Lender's rights and remedies under the time and place Mortgages with respect to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and placeany Real Estate.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Premium Brands LTD)
General Remedies. Upon In addition to and without in any way limiting any other rights and remedies available to the occurrence of Lender under this Agreement prior to an Event of Default and during continuation thereofDefault, the Collateral Agent shall have, in addition to the or any other rights and remedies provided hereinavailable to the Lender (whether prior to or after an Event of Default) under any of the other Loan Documents or under applicable law or in equity, upon and at any time or times after the occurrence and during the continuance of any Event of Default:
(a) the Lender may declare and cause all or any portion of the Obligations to be immediately due and payable;
(b) the Lender shall be entitled to immediate possession of the Collateral or any portion or portions thereof and may enter upon any Borrower’s premises to take possession thereof; may, without demand of performance or other demand, presentment or notice, transfer all or any part of the Collateral into the Lender’s name or the name of its nominee or nominees and/or may collect, receive, appropriate and realize upon the Collateral or any part thereof, and/or may sell, lease, assign, give options to purchase or otherwise dispose of any of the Collateral in the Loan Documentsone or more parcels at public or private sales upon such terms and conditions (including by lease or deferred payment) as it may deem advisable and at such prices as it may deem appropriate, in for cash or credit or for future delivery without assumption of any credit risk and/or may take any other documents actions as may be available under applicable law; may require any Borrower to assemble the Collateral and make it available to the Lender at a place to be reasonably designated by the Lender; or may require any Borrower to deliver all Records relating to the Secured ObligationsCollateral to the Lender;
(c) the Lender may enter upon, occupy, and use any premises owned or occupied by any Borrower (or by any agent of any Borrower at which Collateral is located), and may exclude such Borrower from such premises or portion thereof as may have been so entered upon, occupied, or used by Law the Lender; the Lender shall not be required to remove any of the Collateral from any such premises upon the Lender’s taking possession thereof, and may render any Collateral unusable to any Borrower; and in no event shall the Lender be liable to any Borrower for use or occupancy by the Lender of any premises pursuant to this Agreement except for claims arising out of the Lender’s gross negligence, actual bad faith or willful misconduct, nor for any charge (including levy such as wages for any Borrower’s employees and utilities) incurred in connection with the Lender’s exercise of attachment, garnishment and the Lender’s rights and remedies set forth in remedies;
(d) the UCC Lender may take such steps as it deems necessary to protect the Lender’s interest in, and to preserve the Collateral, and each Borrower agrees to cooperate fully with all of the jurisdiction applicable Lender’s efforts and to take such actions as the affected Lender shall direct, all to preserve the Collateral), ;
(e) the Lender shall have the rights and remedies of a secured party under the UCC (regardless and other applicable laws, the choice and manner of whether exercise of any right or remedy being in the UCC is Lender’s sole discretion; and, pursuant thereto, the law Lender shall have the right to foreclose the security interest granted in any Collateral by any available judicial procedure and to take possession of and sell any or all of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process process; the Lender may lease or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each otherwise dispose of the Pledgors hereby waives to Collateral, or may sell the fullest extent permitted by LawCollateral, at or any place and time or timespart thereof, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof)sales, at any exchange time or brokerplace (including any Borrower’s board or elsewhere, by one or more contractspremises), in one or more parcelssales, at such price or prices, and upon such terms, either for cash, upon credit or otherwisefuture delivery, at such prices and upon such terms as the Lender may elect, and, except as to that part of the Collateral Agent deems advisablewhich is perishable or threatens to decline speedily in value, or is of the type customarily sold on a recognized market, the Lender shall give the applicable Borrower reasonable notification of such sale or sales, it being agreed that, in its all events, reasonable discretion notification means written notice mailed to the applicable Borrower at least ten (subject 10) days prior to any and all mandatory legal requirements). Each Pledgor acknowledges that each such public sale or at least ten (10) days prior to the date after which any such private sale sales or other intended dispositions may be made; at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which sale, and at any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Lawlaw, be made at the time Lender may (but shall have no obligation to) bid for and place become the purchaser of any Collateral; each Borrower hereby waives any and all rights it may have to which judicial hearing in advance of the sale was postponedenforcement of any of the Lender’s rights hereunder, including the Lender’s right to take immediate possession of the Collateral; and the Lender may do any of the foregoing or otherwise deal with the Collateral in its then condition, or following such preparation as the Collateral Agent Lender deems advisable, with or without taking possession thereof; and
(f) the Lender may further postpone such sale by announcement made at such time treat any or all of the Loan Documents as being in default and placemay exercise any rights and remedies thereunder as it shall deem appropriate.
Appears in 1 contract
General Remedies. Upon the occurrence of an If any Event of Default shall occur after the date of this Agreement and shall not have been remedied within the applicable grace period therefor, then in every such event (other than an event with respect to Borrower described in Section 6.01.G, 6.01.H or 6.01.I) and at any time during continuation thereofthe continuance of such event, CFC may:
(a) Xxxxx making Advances hereunder;
(b) Terminate the Collateral Agent shall have, in addition to Line of Credit;
(c) Xxxxx issuing Letters of Credit hereunder;
(d) Declare all unpaid principal outstanding on the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by Law (including levy Line of attachment, garnishment Credit and the rights Note, all accrued and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral)unpaid interest thereon, and furtherall other Obligations to be immediately due and payable and the same shall thereupon become immediately due and payable without presentment, the Collateral Agent maydemand, with protest or without judicial process or the aid and assistance notice of others, without demand and without advertisement, notice, hearing or process of lawany kind, all of which each are hereby expressly waived;
(e) Exercise rights of the Pledgors hereby waives to the fullest extent permitted by Law, at any place setoff or recoupment and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject to apply any and all mandatory legal requirements)amounts held, or hereafter held, by CFC or owed to Borrower or for the credit or account of Borrower against any and all of the Obligations of Borrower now or hereafter existing hereunder or under the Line of Credit and the Note, including, but not limited to, patronage capital allocations and retirements, money due to Borrower from equity certificates purchased from CFC, and any membership or other fees that would otherwise be returned to Borrower. Each Pledgor acknowledges The rights of CFC under this Section are in addition to any other rights and remedies (including other rights of setoff or recoupment) which CFC may have. Borrower waives all rights of setoff, deduction, recoupment or counterclaim;
(f) Pursue all rights and remedies available to CFC that any such private sale may be at prices are contemplated by the Mortgage and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, Loan Documents in the case of a sale of Pledged Equitymanner, that upon the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunderconditions, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance and with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation effect provided in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, Mortgage and the Collateral Agent mayother Loan Documents, including, but not limited to, a suit for judicial foreclosure, specific performance, injunctive relief or damages; and/or
(g) Pursue any other rights and remedies available to CFC at law or in such eventequity. If any Event of Default described in Section 6.01.G, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale 6.01.H or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption 6.01.I with respect to any such sale. Subject Borrower shall occur after the date of this Agreement, then CFC's commitment to make Advances and issue Letters of Credit hereunder shall automatically terminate and the provisions of applicable Lawunpaid principal outstanding hereunder and under the Note, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time accrued and place of such saleunpaid interest thereon, and such sale mayall other Obligations shall thereupon become immediately due and payable without presentment, without further noticedemand, protest or notice of any kind, all of which are hereby expressly waived. In addition, CFC may pursue all rights and remedies available to CFC that are contemplated by the extent permitted by LawMortgage and the other Loan Documents in the manner, be made upon the conditions, and with the effect provided in the Mortgage and the other Loan Documents, including, but not limited to, a suit for specific performance, injunctive relief or damages and any other rights and remedies available to CFC at the time and place to which the sale was postponed, law or the Collateral Agent may further postpone such sale by announcement made at such time and placein equity.
Appears in 1 contract
Samples: Revolving Credit Agreement
General Remedies. Upon Subject to Section 9(c), upon the occurrence and during the continuation of an any Club Trust Event of Default and during continuation thereof, the Collateral Agent MLB Trust shall have, in addition to the all other rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, herein or by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral)law, the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and or remedies are asserted and regardless of whether the UCC applies to the affected CollateralClub Trust Collateral or portion thereof), and further, further the Collateral MLB Trust may with the prior consent of and shall at the direction of the Administrative Agent may, (itself acting with the consent or without judicial process or at the aid and assistance direction of othersall the Lenders), without demand and without advertisement, notice, hearing or process of law, all of which each the Indians Club Trust (on its own behalf and on behalf of the Pledgors its Participating Club) hereby waives waives, to the fullest extent permitted by Lawlaw, at any place and time or times, sell and deliver any or all Club Trust Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcelssale, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent MLB Trust deems advisable, in its reasonable discretion (subject to sole discretion; provided that said disposition complies with any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices In addition to all other sums due the MLB Trust, the Indians Club Trust shall pay the MLB Trust all reasonable costs and on terms less favorable expenses incurred by the MLB Trust, including reasonable attorneys' fees and court costs, in obtaining or liquidating the Club Trust Collateral, in enforcing payment of the Club Trust Secured Obligations and, without duplication and subject to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, restriction on cross-collateralization contained in the case Transaction Documents (including Section 2.12(d) of a sale of Pledged Equitythe Club Trust Credit Agreement), that the Collateral Agent shall have no obligation Secured Obligations attributable to delay sale such Club Trust or in the prosecution or defense of any such securities for action or proceeding by or against the period MLB Trust, the Administrative Agent, any Lender, any Liquidity Bank, the Club Trusts or the Participating Clubs concerning any matter arising out of time necessary or connected with this Agreement, the Club Trust Collateral or the Club Trust Secured Obligations, including, without limitation, any of the foregoing arising in, arising under or related to permit the issuer of such securities to register such securities for public sale a case under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any saleUnited States Bankruptcy Code. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor the Indians Club Trust agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, notice is personally served on or mailed, postage prepaid, to the Pledgors Indians Club Trust in accordance with the notice provisions of Section 11.02 of the Credit Agreement 12(b) hereof at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent MLB Trust shall not be obligated to make any sale or other disposition of the Club Trust Collateral regardless of notice having been given. To the extent permitted by applicable Lawlaw, the MLB Trust, the Administrative Agent, any holder of Secured Obligations Lender or any Liquidity Bank may be a the purchaser at any such sale. To the extent permitted by applicable Lawlaw, each of the Pledgors Indians Club Trust hereby waives all of its rights of redemption with respect to from any such sale. Subject to the provisions of applicable Lawlaw, the Collateral Agent MLB Trust may postpone or cause the postponement of the sale of all or any portion of the Club Trust Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Lawlaw, be made at the time and place to which the sale was postponed, postponed or the Collateral Agent MLB Trust may further postpone such sale by announcement made at such time and place.
Appears in 1 contract
Samples: Club Trust Pledge and Security Agreement (Cleveland Indians Baseball Co Inc)
General Remedies. Upon In addition to and without in any way limiting any other rights and remedies available to the occurrence of Lender under this Agreement prior to an Event of Default and during continuation thereofDefault, the Collateral Agent shall have, in addition to the or any other rights and remedies provided hereinavailable to the Lender (whether prior to or after an Event of Default) under any of the other Financing Documents or under applicable law or in equity, in upon and at any time or times after the Loan Documents, in occurrence and during the continuance of any other documents Event of Default:
(a) the Lender may declare and cause all or any portion of the Secured Obligations to be immediately due and payable; (b) the Lender may decline to honor the credit of any Subsidiary Guarantor or may refuse to make further advances to any Subsidiary Guarantor; (c) the Lender may collect the Accounts with or without taking possession of the Collateral; (d) the Lender shall be entitled to immediate possession of the Collateral or any portion or portions thereof and may enter upon any Subsidiary Guarantor's premises to take possession thereof; may require any Subsidiary Guarantor to assemble the Collateral and make it available to the Lender at a place to be designated by the Lender which is reasonably convenient to both parties; or may require any Subsidiary Guarantor to deliver all Records relating to the Secured ObligationsCollateral to the Lender; (e) the Lender may enter upon, occupy, and use any premises owned or occupied by any Subsidiary Guarantor (or by any agent of such Subsidiary Guarantor at which Collateral is located), and may exclude any Subsidiary Guarantor from such premises or portion thereof as may have been so entered upon, occupied, or used by Law the Lender; the Lender shall not be required to remove any of the Collateral from any such premises upon the Lender's taking possession thereof, and may render any Collateral unusable to any Subsidiary Guarantor; and in no event shall the Lender be liable to any Subsidiary Guarantor for use or occupancy by the Lender of any premises pursuant to this Agreement except for claims arising out of the Lender's gross negligence, actual bad faith or willful misconduct, nor for any charge (including levy such as wages for any Subsidiary Guarantor's employees and utilities) incurred in connection with the Lender's exercise of attachment, garnishment and the Lender's rights and remedies set forth in remedies; (f) the UCC Lender may take such steps as it deems necessary to protect the Lender's interest in, and to preserve the Collateral, and each Subsidiary Guarantor agrees to cooperate fully with all of the jurisdiction applicable Lender's efforts and to take such actions as the affected Lender shall direct, all to preserve the Collateral), ; (g) the Lender shall have the rights and remedies of a secured party under the UCC (regardless and other applicable laws, the choice and manner of whether exercise of any right or remedy being in the UCC is Lender's sole discretion; and, pursuant thereto, the law Lender shall have the right to foreclose the security interest granted in any Collateral by any available judicial procedure and to take possession of and sell any or all of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process process; the Lender may lease or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each otherwise dispose of the Pledgors hereby waives to Collateral, or may sell the fullest extent permitted by LawCollateral, at or any place and time or timespart thereof, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof)sales, at any exchange time or broker’s board or elsewhere, by one or more contractsplace (including any Subsidiary Guarantor's premises), in one or more parcelssales, at such price or prices, and upon such terms, either for cash, upon credit or otherwisefuture delivery, at such prices and upon such terms as the Lender may elect, and, except as to that part of the Collateral Agent deems advisablewhich is perishable or threatens to decline speedily in value, or is of the type customarily sold on a recognized market, the Lender shall give the Subsidiary Guarantors reasonable notification of such sale or sales, it being agreed that, in its all events, reasonable discretion notification means written notice mailed to the Subsidiary Guarantors at least ten (subject 10) days prior to any and all mandatory legal requirements). Each Pledgor acknowledges that each such public sale or at least ten (10) days prior to the date after which any such private sale sales or other intended dispositions may be made; at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a any public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent Lender may (but shall have no obligation to delay sale to) bid for and become the purchaser of any such securities for Collateral; each Subsidiary Guarantor hereby waives any and all rights it may have to judicial hearing in advance of the period enforcement of time necessary any of the Lender's rights hereunder, including the Lender's right to permit take immediate possession of the issuer Collateral; and the Lender may do any of such securities to register such securities for public sale under the Securities Act of 1933. Neither foregoing or otherwise deal with the Collateral Agent’s compliance with applicable Law nor in its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933)then condition, or (ii) made privately in following such preparation as the manner described above shall be deemed to involve a “public sale” under the UCCLender deems advisable, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale with or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and place.taking possession thereof;
Appears in 1 contract
General Remedies. Upon In addition to the occurrence remedies set forth in Sections 4.2 and 4.3.7 of this Security Instrument, if an Event of Default shall have occurred and during continuation thereofbe then in existence, Grantee may take such action, without notice or demand, as it shall deem advisable to protect and enforce its rights against Borrower and in and to the Collateral or any part thereof or interest therein, including, but not limited to, the Collateral Agent shall havefollowing actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Grantee may determine, in addition to its sole discretion, without impairing or otherwise affecting the other rights and remedies provided hereinof Grantee (i) enter into or upon the Collateral, either personally or by its agents, nominees or attorneys and dispossess Borrower and its agents and servants therefrom, and thereupon Grantee may (A) use, operate, manage, control, insure, maintain, repair, restore, harvest and sell Timber and otherwise deal with all and every part of the Collateral and conduct the business thereat, (B) complete any construction on the Collateral in such manner and form as Grantee deems advisable, (C) make alterations, additions, renewals, replacements and improvements to or on the Collateral, (D) exercise all rights and powers of Borrower with respect to the Collateral, whether in the Loan Documentsname of Borrower or otherwise, in any including, without limitation, the right to make, cancel, enforce or modify, Timber sale contracts, log or pulpwood sale contracts, stumpage sale agreements, leases, and other documents relating agreements and demand, sxx for, collect and receive all earnings, revenues, rents, issues, profits and other income of the Collateral and every part thereof and (E) receive and collect the receipts from the Collateral, give proper receipts, releases and acquittances therefor, and apply the same to the payment of the Secured Obligations, or by Law after deducting therefrom all expenses (including levy of attachmentreasonable attorneys’ fees and expenses) incurred in connection with the aforesaid operations and all amounts necessary to pay the taxes, garnishment assessments, insurance and other charges in connection with the rights Collateral, as well as just and remedies set forth in reasonable compensation for the UCC services of the jurisdiction applicable to Grantee and its counsel, agents and employees, or (ii) institute proceedings for the affected Collateral), the rights and remedies complete foreclosure of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, this Security Instrument in which case the Collateral Agent may, with may be sold for cash or without judicial process or the aid and assistance of others, without demand and without advertisement, notice, hearing or process of law, all of which each of the Pledgors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, upon credit in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (iiiii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale with or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further noticeentry, to the extent permitted and pursuant to the procedures provided by applicable Law, be made at institute proceedings for the time partial foreclosure of this Security Instrument for the portion of the Secured Obligations then due and place payable, subject to which the sale was postponedcontinuing security title of this Security Instrument for the balance of the Secured Obligations not then due, or (iv) sell for cash or upon credit the Collateral Agent may further postpone such or any part thereof and all or any part of any estate, claim, demand, right, title and interest of Borrower therein and rights of redemption thereof, pursuant to power of sale by announcement made or otherwise, at one or more sales, as an entirety or in parcels, at such time and place, upon such terms and after such notice thereof as may be required or permitted by Law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Collateral, Grantee’s security title to the remaining portion of or estate in the Collateral shall continue pursuant to this Security Instrument, or (v) institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein or in the Note or any other Loan Document, or (vi) recover judgment on the Note or any guaranty either before, during or after any proceedings for the enforcement of this Security Instrument or (vii) pursue such other remedies as Grantee may have under applicable Law or equity. Further, once Grantee has exercised any of its rights or remedies hereunder, or under the Loan Documents, during the existence of an Event of Default, all actions theretofore or thereafter taken by Grantee in pursuit of such rights and remedies shall not be affected by any cure of such Event of Default, unless Grantee shall accept the cure and terminate pursuit of any such right or remedy, in which case, the parties shall be restored to their position which existed prior to Grantee’s exercise of its rights or remedies.
Appears in 1 contract
General Remedies. If any Event of Default specified in Section 7.3 shall occur, all Restated Obligations of the Company Entities to Lender hereunder and under the other Transaction Documents shall automatically become immediately due and payable without notice. Upon the occurrence of an any Event of Default and during continuation thereofDefault, the Collateral Agent shall have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by Law (including levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent Lender may, with or without judicial process or the aid and assistance notice of othersany kind (including, without limitation, notice of acceleration or of intention to accelerate, presentment and demand and without advertisement, notice, hearing or process of lawprotest, all of which each are hereby expressly waived by Company) do any one or more of the Pledgors hereby waives to following:
(a) declare the fullest extent Restated Obligations, or any part thereof, immediately due and payable;
(b) exercise any and all other legal or equitable rights afforded by the Transaction Documents and the laws of the Applicable Jurisdiction or any other jurisdiction as Lender shall deem appropriate; and
(c) take any action permitted by Lawthis Agreement or by applicable law, at including the Uniform Commercial Code then in effect in the Applicable Jurisdiction, to satisfy the Restated Obligations of the Company Entities owed to Lender, including, but not limited to, Lender may in its sole discretion sell the Collateral or any place and time part thereof in one or times, sell and deliver any or all Collateral held by or for it more parcels at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcelssale, for cash, upon on credit or otherwisefor future delivery, at such prices and upon such other terms as Lender may deem commercially reasonable, and Lender may purchase all or any part of the Collateral Agent deems advisableat public or, if permitted by law, private sale, and in its reasonable discretion (subject to any and all mandatory legal requirements). Each Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case lieu of a sale of Pledged Equity, that the Collateral Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer actual payment of such securities to register such securities for public sale under purchase price, may set off the Securities Act of 1933. Neither the Collateral Agent’s compliance with applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Pledgor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Pledgors in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least 10 days before the time of sale or other event giving rise to the requirement amount of such noticepurchase price against the Restated Obligations. The Collateral Agent Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further with notice, be made at the time and place to which it was so adjourned. Lender may abandon any such proposed sale. Each Pledgor further Company Entity acknowledges and that any private sales of Collateral effected by Lender may result in terms less favorable to a seller than public sales but each Company Entity agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above private sales shall nevertheless be deemed to involve a “public sale” under the UCCcommercially reasonable. The Company Entities shall pay all costs, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933fees and expenses incurred by Lender, including reasonable attorney’s fees and the Collateral Agent maycourt costs, in such event, bid for the purchase of such securities. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable Law, any holder of Secured Obligations may be a purchaser at connection with any such sale. To the extent permitted by applicable Law, each of the Pledgors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable Law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and place.
Appears in 1 contract
Samples: Loan and Security Agreement (Red Cat Holdings, Inc.)
