Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder. 6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender. 6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: (a) take possession and control of the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion select, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rents, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender may, at its option, and without any notice whatsoever to Borrower, and without regard to the value of the Property or the adequacy of the Property (together with any other property securing the Debt) to secure repayment of the Debt, have a receiver appointed to do all of the actions set forth in the immediately preceding paragraph and to, with the consent of Lender, dispose (by lease, sale or otherwise) of some or all of the Property in the course of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the Borrower, who agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demand.
Appears in 2 contracts
Samples: Assignment of Leases and Rents (TNP Strategic Retail Trust, Inc.), Assignment of Leases and Rents (TNP Strategic Retail Trust, Inc.)
Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: (a) take possession and control of Upon the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion selectoccurrence, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rentsduring the continuation, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender maymay exercise any of the rights and remedies of a secured party under the UCC and any other rights and remedies provided for in this Agreement or any other Financing Document or otherwise available to it at law or in equity, such rights and remedies to include, without limitation, the following, all of which are authorized by Borrower:
(i) Declare all Secured Obligations, whether evidenced by this Agreement, by any of the other Financing Documents, or otherwise, immediately due and payable;
(ii) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Financing Documents, or under any other agreement between Borrower and/or any Guarantor, and Lender;
(iii) Terminate this Agreement and any of the other Financing Documents as to any future liability or obligation of Lender, but without affecting any of Lender’s Liens in the Collateral and without affecting the Secured Obligations;
(b) Settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender in its sole discretion considers advisable, and in such cases, Lender will credit Borrower’s Loan Account with only the net amounts received by Lender in payment of such Accounts after deducting all Lender Expenses incurred or expended in connection therewith;
(c) Cause Borrower and/or any Guarantor to hold all returned Inventory in trust for Lender, segregate all returned Inventory from all other assets of Borrower (or such Guarantor) or in Borrower’s (or such Guarantor’s) possession and conspicuously label said returned Inventory as the property of Lender;
(d) Without notice to or demand upon Borrower or any Guarantor, make such payments and do such acts as Lender considers necessary or reasonable to protect its security interests in the Collateral. Borrower agrees to assemble, and to cause each Guarantor to assemble, the Collateral if Lender so requires, and to make the Collateral available to Lender at a place that Lender may designate which is reasonably convenient to both parties. Borrower authorizes Lender to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any Lien that in Lender’s determination appears to conflict with Lender’s Liens and to pay all expenses incurred in connection therewith and to charge Borrower’s Loan Account therefor. With respect to Borrower’s owned or leased premises, Borrower hereby grants Lender a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Lender’s rights or remedies provided herein, at its optionlaw, in equity, or otherwise;
(e) Without notice to Borrower or any Guarantor (such notice being expressly waived), and without constituting a retention of any notice whatsoever collateral in satisfaction of an obligation (within the meaning of the UCC), set off and apply to Borrowerthe Secured Obligations any and all (i) balances and deposits of Borrower or any Guarantor held by Lender (including any amounts received in the Cash Management Accounts), or (ii) Indebtedness at any time owing to or for the credit or the account of Borrower or any Guarantor held by Lender;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral. Borrower hereby grants to Lender a license or other right to use, without regard charge, Borrower’s labels, patents, copyrights, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the value Collateral, in completing production of, advertising for sale, and selling any Collateral and Borrower’s rights under all licenses and all franchise agreements shall inure to Lender’s benefit;
(g) Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Borrower’s premises) as Lender determines is commercially reasonable. It is not necessary that the Collateral be present at any such sale;
(h) Lender shall give notice of the Property or the adequacy disposition of the Property Collateral as follows, which form and manner of notice Borrower hereby agrees shall be commercially reasonable:
(together with any other property securing the Debti) to secure repayment Lender shall give Borrower a notice in writing of the Debttime and place of public sale, have or, if the sale is a receiver appointed private sale or some other disposition other than a public sale is to do all be made of the actions Collateral, then the time on or after which the private sale or other disposition is to be made; and
(ii) The notice shall be personally delivered or mailed, postage prepaid, to Borrower as provided in Section 9.06, at least 10 days before the earliest time of disposition set forth in the immediately preceding paragraph and to, with notice; provided that no notice needs to be given prior to the consent disposition of Lender, dispose (by lease, sale or otherwise) of some or all any portion of the Property Collateral that is perishable or threatens to decline speedily in value or that is of a type customarily sold on a recognized market;
(i) Lender may credit bid and purchase at any public sale;
(j) Lender may seek the course appointment of a receiver or keeper to take possession of all or any portion of the proceeding Collateral or to operate same and, to the maximum extent permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or a hearing;
(k) Lender shall have all other rights and remedies available at law or in which such receiver is appointed. All such actions shall be taken at the expense equity or pursuant to any other Financing Document; and
(l) Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower. Any excess will be returned, who agrees without interest and subject to reimburse the rights of third Persons, by Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demandto Borrower.
Appears in 2 contracts
Samples: Loan and Security Agreement (Xactly Corp), Loan and Security Agreement (Xactly Corp)
Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: :
(a) take possession and control of the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion select, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rents, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender may, at its option, and without any notice whatsoever to Borrower, and without regard to the value of the Property or the adequacy of the Property (together with any other property securing the Debt) to secure repayment of the Debt, have a receiver appointed to do all of the actions set forth in the immediately preceding paragraph and to, with the consent of Lender, dispose (by lease, sale or otherwise) of some or all of the Property in the course of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the Borrower, who agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demand.
Appears in 2 contracts
Samples: Assignment of Leases and Rents (TNP Strategic Retail Trust, Inc.), Assignment of Leases and Rents (TNP Strategic Retail Trust, Inc.)
Lender’s Remedies Upon Default. (a) Upon the occurrence occurrence, and during the continuation, of an Event of Default, the Lender may exercise any of the rights and remedies of a secured party under the UCC and any other rights and remedies provided for in this Agreement or any other Financing Document or otherwise available to it at law or in equity, such rights and remedies to include, without limitation, the following, all of which are authorized by Borrower:
(i) Declare all Secured Obligations, whether evidenced by this Agreement, by any of the other Financing Documents, or otherwise, immediately due and payable;
(ii) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Financing Documents, or under any other agreement between the Borrower and/or any Guarantor, and the Lender;
(iii) Terminate this Agreement and any of the other Financing Documents as to any future liability or obligation of the Lender, but without affecting any of the Lender’s Liens in the Collateral and without affecting the Secured Obligations;
(b) Settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender in its sole discretion considers advisable, and in such cases, Lender will credit Borrower’s Loan Account with only the net amounts received by Lender in payment of such Accounts after deducting all Lender Expenses incurred or expended in connection therewith;
(c) Cause Borrower and/or any Guarantor to hold all returned Inventory in trust for the Lender, segregate all returned Inventory from all other assets of Borrower (or such Guarantor) or in Borrower’s (or such Guarantor’s) possession and conspicuously label said returned Inventory as the property of the Lender;
(d) Without notice to or demand upon Borrower or any Guarantor, make such payments and do such acts as Lender considers necessary or reasonable to protect its security interests in the Collateral. Borrower agrees to assemble, and to cause each Guarantor to assemble, the Collateral if Lender so requires, and to make the Collateral available to Lender at a place that Lender may designate which is reasonably convenient to both parties. Borrower authorizes Lender to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any Lien that in Lender’s determination appears to conflict with the Lender’s Liens and to pay all expenses incurred in connection therewith and to charge Borrower’s Loan Account therefor. With respect to Borrower’s owned or leased premises, Borrower hereby grants Lender a license to collect enter into possession of such premises and retain to occupy the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and same, without charge, in order to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lenderor remedies provided herein, at its optionlaw, in equity, or otherwise;
(e) Without notice to Borrower or any Guarantor (such notice being expressly waived), and without constituting a retention of any notice whatsoever to Borrower, shall have collateral in satisfaction of an obligation (within the right and is hereby authorized to: (a) take possession and control meaning of the Property; (b) manage UCC), set off and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements apply to the Property which Secured Obligations any and all (i) balances and deposits of Borrower or any Guarantor held by the Lender (including any amounts received in the Cash Management Accounts), or (ii) Indebtedness at its discretion deems necessary; (e) collect all Rents from any time owing to or for the Property; credit or the account of Borrower or any Guarantor held by the Lender;
(f) enforce Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the Leases; manner provided for herein) the Collateral. Borrower hereby grants to Lender a license or other right to use, without charge, Borrower’s labels, patents, copyrights, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and Borrower’s rights under all licenses and all franchise agreements shall inure to the Lender’s benefit;
(g) eject tenants Sell the Collateral at either a public or repossess personal propertyprivate sale, as provided or both, by lawway of one or more contracts or transactions, for breaches of cash or on terms, in such manner and at such places (including Borrower’s premises) as Lender determines is commercially reasonable. It is not necessary that the conditions of the Leases; Collateral be present at any such sale;
(h) in Lender shall give notice of the name disposition of either the Collateral as follows, which form and manner of notice Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion select, and upon such terms and conditions as Lender in its discretion may determine; hereby agrees shall be commercially reasonable:
(i) xxx for unpaid rentsLender shall give Borrower a notice in writing of the time and place of public sale, payments or, if the sale is a private sale or proceeds some other disposition other than a public sale is to be made of the Collateral, then the time on or after which the private sale or other disposition is to be made; and
(ii) The notice shall be personally delivered or mailed, postage prepaid, to Borrower as provided in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender maySection 9.06, at its option, and without any notice whatsoever to Borrower, and without regard to least 10 days before the value earliest time of the Property or the adequacy of the Property (together with any other property securing the Debt) to secure repayment of the Debt, have a receiver appointed to do all of the actions disposition set forth in the immediately preceding paragraph and to, with notice; provided that no notice needs to be given prior to the consent disposition of Lender, dispose (by lease, sale or otherwise) of some or all any portion of the Property Collateral that is perishable or threatens to decline speedily in value or that is of a type customarily sold on a recognized market;
(i) Lender may credit bid and purchase at any public sale;
(j) Lender may seek the course appointment of a receiver or keeper to take possession of all or any portion of the proceeding Collateral or to operate same and, to the maximum extent permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or a hearing;
(k) Lender shall have all other rights and remedies available at law or in which such receiver is appointed. All such actions shall be taken at the expense equity or pursuant to any other Financing Document; and
(l) Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower. Any excess will be returned, who agrees without interest and subject to reimburse the rights of third Persons, by Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demandto Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (GlassHouse Technologies Inc)
Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: (a) take possession and control of Upon the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion selectoccurrence, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rentsduring the continuation, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender maymay exercise any of the rights and remedies of a secured party under the PPSA or other similar applicable foreign Law, and any other rights and remedies provided for in this Agreement or any other Financing Document or otherwise available to it at law or in equity, such rights and remedies to include, without limitation, the following, all of which are authorized by each Loan Party:
(i) Declare all Secured Obligations, whether evidenced by this Agreement, by any of the other Financing Documents, or otherwise, immediately due and payable;
(ii) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Financing Documents, or under any other agreement between any Loan Party, and Lender;
(iii) Terminate this Agreement and any of the other Financing Documents as to any future liability or obligation of Lender, but without affecting any of Lender’s Liens in the Collateral and without affecting the Secured Obligations;
(iv) Settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender in its optionsole discretion considers advisable, and in such cases, Lender will credit Borrower’s Loan Account with only the net amounts received by Lender in payment of such Accounts after deducting all Lender Expenses incurred or expended in connection therewith;
(v) Without notice to any Loan Party (such notice being expressly waived), and without constituting a retention of any notice whatsoever to Borrowercollateral in satisfaction of an obligation (within the meaning of the PPSA or other similar applicable foreign Law), set off and without regard apply to the value of the Property or the adequacy of the Property Secured Obligations any and all (together with any other property securing the Debti) to secure repayment of the Debt, have a receiver appointed to do all of the actions set forth in the immediately preceding paragraph and to, with the consent funds coming into possession of Lender, dispose or (ii) Indebtedness at any time owing to or for the credit or the account of any Loan Party held by leaseLender;
(vi) Deliver a notice of exclusive control, sale any entitlement order, or otherwiseother directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(vii) of some take any and all other remedies at Law or all of provided for under the Property in the course of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the Borrower, who agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demandapplicable Security Documents.
Appears in 1 contract
Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain enjoy the Rents Premises under Section 5 above the Franchise shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession and occupancy of the Property Premises shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of DefaultIn such event, and upon Lender’s election, Borrower shall deliver to Lender all of the original LeasesFranchise, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the PropertyPremises. Any oral Leases contracts shall be described in a writing delivered by Borrower to the Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, but with notice to the Landlord, shall have the right and is hereby authorized to: (a) take possession possession, occupancy and control of the PropertyPremises subject to the terms and provisions of the Franchise as lessee in the place of Borrower; (b) manage and operate the Propertyimprovements to the Premises and the business of the Borrower conducted therein; (c) preserve and maintain the Propertyimprovements made to the Premises; (d) make repairs and improvements (with the consent of the Landlord to the Property extent required by the Franchise) and repairs to the improvements made and constructed on the Premises which Lender at its sole discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or Borrower and/or repossess personal propertyproperty of Borrower, as provided by law, for breaches (f) with the approval of the conditions Landlord as provided in this Assignment, assume and take over the Franchise in the place and stead of Borrower, and in so doing, with the approval of the LeasesLandlord as set forth herein sublease the Premises subject to the provisions governing same in the Franchise; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion select, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rents, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (mg) delegate any and all rights and powers given to Lender by this Assignment; (h) have a receiver appointed; and (ni) use such measures, legal or equitable, as in its sole discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender may, at its option, and without any notice whatsoever to Borrower, and without regard to the value of the Property or the adequacy of the Property (together with any other property securing the Debt) to secure repayment of the Debt, have a receiver appointed to do all of the actions set forth in the immediately preceding paragraph and to, with the consent of Lender, dispose (by lease, sale or otherwise) of some or all of the Property in the course of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the Borrower, who which agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demand.
Appears in 1 contract
Samples: Collateral Assignment of Franchise
Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: (a) take possession and control of Upon the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion selectoccurrence, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rentsduring the continuation, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender maymay exercise any of the rights and remedies of a secured party under the PPSA or other similar applicable foreign Law, and any other rights and remedies provided for in this Agreement or any other Financing Document or otherwise available to it at law or in equity, such rights and remedies to include, without limitation, the following, all of which are authorized by each Loan Party:
(i) Declare all Secured Obligations, whether evidenced by this Agreement, by any of the other Financing Documents, or otherwise, immediately due and payable;
(ii) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Financing Documents, or under any other agreement between any Loan Party, and Lender;
(iii) Terminate this Agreement and any of the other Financing Documents as to any future liability or obligation of Lender, but without affecting any of Lender’s Liens in the Collateral and without affecting the Secured Obligations;
(iv) Settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender in its optionsole discretion considers advisable, and in such cases, Lender will credit Borrower’s Loan Account with only the net amounts received by Lender in payment of such Accounts after deducting all Lender Expenses incurred or expended in connection therewith;
(v) Without notice to any Loan Party (such notice being expressly waived), and without constituting a retention of any notice whatsoever to Borrowercollateral in satisfaction of an obligation (within the meaning of the PPSA or other similar applicable foreign Law), set off and without regard apply to the value of the Property or the adequacy of the Property Secured Obligations any and all (together with any other property securing the Debti) to secure repayment of the Debt, have a receiver appointed to do all of the actions set forth in the immediately preceding paragraph and to, with the consent funds coming into possession of Lender, dispose or (ii) Indebtedness at any time owing to or for the credit or the account of any Loan Party held by leaseXxxxxx;
(vi) Deliver a notice of exclusive control, sale any entitlement order, or otherwiseother directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(vii) of some take any and all other remedies at Law or all of provided for under the Property in the course of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the Borrower, who agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demandapplicable Security Documents.
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Lender’s Remedies Upon Default. Upon the occurrence of an Event of Default, Borrower’s license to collect and retain the Rents under Section 5 above shall immediately terminate. Lender will have the right at its option to enforce and to exercise any or all of its rights under this Assignment or otherwise, but Borrower expressly agrees that Lender’s exercise of any rights hereunder or Lender’s affirmative act to collect the Rents or other income or to acquire possession of the Property shall not be a prerequisite or precondition to the full enforceability of Lender’s rights hereunder.
6.1 Upon the occurrence of an Event of Default, and upon Lender’s election, Borrower shall deliver to Lender all of the original Leases, and all modifications, extensions, renewals, amendments, and other agreements relating thereto and to the Property. Any oral Leases shall be described in a writing delivered by Borrower to Lender.
6.2 Upon the occurrence of an Event of Default, Lender, at its option, and without any notice whatsoever to Borrower, shall have the right and is hereby authorized to: (a) take possession and control of Upon the Property; (b) manage and operate the Property; (c) preserve and maintain the Property; (d) make repairs and improvements to the Property which Lender at its discretion deems necessary; (e) collect all Rents from the Property; (f) enforce the Leases; (g) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of the Leases; (h) in the name of either Borrower or Lender enter into real or personal property leases, subleases or tenancy agreements, or other contracts or agreements, with such third parties as Lender may at its discretion selectoccurrence, and upon such terms and conditions as Lender in its discretion may determine; (i) xxx for unpaid rentsduring the continuation, payments or proceeds in the name of Borrower or Lender; (j) maintain actions for possession of property or for rent; (k) compromise or give acquittance for rents, payments or proceeds that may become due; (l) maintain suits on contracts and agreements; (m) delegate any and all rights and powers given to Lender by this Assignment; and (n) use such measures, legal or equitable, as in its discretion may carry out and effectuate the provisions of this Assignment. In addition, upon the occurrence of an Event of Default, Lender maymay exercise any of the rights and remedies of a secured party under the UCC and any other rights and remedies provided for in this Agreement or any other Financing Document or otherwise available to it at law or in equity, such rights and remedies to include, without limitation, the following, all of which are authorized by Borrower:
(i) Declare all Secured Obligations, whether evidenced by this Agreement, by any of the other Financing Documents, or otherwise, immediately due and payable;
(ii) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, under any of the Financing Documents, or under any other agreement between Borrower and/or any Guarantor, and Lender;
(iii) Terminate this Agreement and any of the other Financing Documents as to any future liability or obligation of Lender, but without affecting any of Lender’s Liens in the Collateral and without affecting the Secured Obligations;
(b) Settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which Lender in its sole discretion considers advisable, and in such cases, Lender will credit Borrower’s Loan Account with only the net amounts received by Lender in payment of such Accounts after deducting all Lender Expenses incurred or expended in connection therewith;
(c) Cause Borrower and/or any Guarantor to hold all returned Inventory in trust for Lender, segregate all returned Inventory from all other assets of Borrower (or such Guarantor) or in Borrower’s (or such Guarantor’s) possession and conspicuously label said returned Inventory, as the property of Lender;
(d) Without notice to or demand upon Borrower or any Guarantor, make such payments and do such acts as Lender considers necessary or reasonable to protect its security interests in the Collateral. Borrower agrees to assemble, and to cause each Guarantor to assemble, the Collateral if Lender so requires, and to make the Collateral available to Lender at a place that Lender may designate which is reasonably convenient to both parties. Borrower authorizes Lender to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any Lien that in Lender’s determination appears to conflict with Lender’s Liens and to pay all expenses incurred in connection therewith and to charge Borrower’s Loan Account therefor. With respect to Borrower’s owned or leased premises, Borrower hereby grants Lender a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Lender’s rights or remedies provided herein, at its optionlaw, in equity, or otherwise;
(e) Without notice to Borrower or any Guarantor (such notice being expressly waived), and without constituting a retention of any notice whatsoever collateral in satisfaction of an obligation (within the meaning of the UCC), set off and apply to Borrowerthe Secured Obligations any and all (i) balances and deposits of Borrower or any Guarantor held by Lender (including any amounts received in the Cash Management Accounts), or (ii) Indebtedness at any time owing to or for the credit or the account of Borrower or any Guarantor held by Lender;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral. Borrower hereby grants to Lender a license or other right to use, without regard charge, Borrower’s labels, patents, copyrights, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the value Collateral, in completing production of, advertising for sale, and selling any Collateral and Borrower’s rights under all licenses and all franchise agreements shall inure to Lender’s benefit;
(g) Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Borrower’s premises) as Lender determines is commercially reasonable. It is not necessary that the Collateral be present at any such sale;
(h) Lender shall give notice of the Property or the adequacy disposition of the Property Collateral as follows, which form and manner of notice Borrower hereby agrees shall be commercially reasonable:
(together with any other property securing the Debti) to secure repayment Lender shall give Borrower a notice in writing of the Debttime and place of public sale, have or, if the sale is a receiver appointed private sale or some other disposition other than a public sale is to do all be made of the actions Collateral, then the time on or after which the private sale or other disposition is to be made; and
(ii) The notice shall be personally delivered or mailed, postage prepaid, to Borrower as provided in Section 9.06, at least 10 days before the earliest time of disposition set forth in the immediately preceding paragraph notice; provided that no notice needs to be given prior to the disposition of any portion of the Collateral that is perishable or threatens to decline speedily in value or that is of a type customarily sold on a recognized market;
(i) Lender may credit bid and purchase at any public sale;
(j) Lender may seek the appointment of a receiver or keeper to take possession of all or any portion of the Collateral or to, with operate same and, to the consent maximum extent permitted by law, may seek the appointment of Lender, dispose such a receiver without the requirement of prior notice or a hearing;
(by lease, sale k) Lender shall have all other rights and remedies available at law or otherwisein equity or pursuant to any other Financing Document; and
(l) of some or all Any deficiency that exists after disposition of the Property in Collateral as provided above will be paid immediately by Borrower. Any excess will be returned, without interest and subject to the course rights of the proceeding in which such receiver is appointed. All such actions shall be taken at the expense of the third Persons, by Lender to Borrower, who agrees to reimburse Lender for all amounts expended, together with interest thereon from the date of expenditure at the Default Rate stated in the Note, upon demand.
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