Preservation of Security. 6.1. It is hereby agreed and declared that: 6.1.1. the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations; 6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them; 6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge; 6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and 6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given. 6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment. 6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 7 contracts
Samples: Term Loan Security Agreement, Term Loan Credit Agreement (International Lease Finance Corp), Term Loan Security Agreement (International Lease Finance Corp)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations or Administrative Agent to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Secured Creditors or any arrangement is made on other person:
(a) any time or waiver granted to the faith Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Credit Parties or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Credit Parties or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede or compromise in good faith frustration of any claim that obligations of any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Credit Parties or as otherwise provided in any other person under the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered other Security Documents (other than this Mortgage) or realised under this Charge or under any other guarantee, security document or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountsecurity.
Appears in 4 contracts
Samples: Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp)
Preservation of Security. 6.1. It is hereby agreed and declared that:
6.1.1. the 2.1 The security created constituted by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any an intermediate payment or satisfaction of the whole or any part of the Secured Obligations but shall secure the ultimate balance of the Secured Obligations;
6.1.2. the The security created by this Charge is hereby given shall be in addition to and independent of and shall not prejudice or merge with any other security (Lien now or any right of set-off) which hereafter held by the Chargee may hold at any time Collateral Agent for the Secured Obligations all or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from Secured Obligations, and the Chargor or any other person, exercise any Collateral Agent’s rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair not be postponed, lessened or otherwise prejudicially affected or merged in any other such rightsecurity.
2.2 The obligations of the Chargor hereunder and the security constituted by this Charge shall not be affected by any act, power omission or remedy circumstances which but for this provision might operate to release or be construed as a waiver thereof nor shall any single otherwise exonerate the Chargor from its obligations hereunder or partial exercise affect such obligations including without limitation and whether or not known to either of any such right, power or remedy preclude any further exercise thereof the Chargor or the exercise of Collateral Agent:
(a) any other righttime or indulgence granted to any person including the Borrower, power or remedy. The rightsthe Chargor;
(b) the variation, powers and remedies herein provided are cumulative and not exclusive of any rightsextension, powers and remedies provided by law and may be exercised from time compromise, renewal or release of, or refusal or neglect to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of perfect or enforce any terms of this Charge; and
(c) any irregularity, invalidity or unenforceability of any obligations of the Chargor under this Charge or any present or future law or order of any government authority (whether of right or in fact) purporting to reduce or otherwise affect any of such obligations under this Charge which shall only be effective construed accordingly as if given there were no such irregularity, unenforceability, invalidity, law or order provided that any such construction shall not cause the Chargor to be in writing and then only against the Chargee and for the purpose and upon the terms for which it is givenbreach or contravention of any applicable law or order.
6.2. 2.3 Where any discharge (whether in respect of this Charge or otherwise) is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 liquidation or otherwise without limitation, the security constituted by this Charge and the liability of the Chargor under this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 4 contracts
Samples: Credit Agreement (NCL CORP Ltd.), Credit Agreement (NCL CORP Ltd.), Credit Agreement (NCL CORP Ltd.)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Mortgagee shall not have to wait for the Secured Obligations or enforcement of any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no failure or delay or omission on the part of the Chargee Mortgagee in exercising any right, power power, privilege or remedy under this Charge hereunder and no course of dealing between Owner and Mortgagee or any of the Secured Creditors shall impair such right, power or remedy or be construed operate as a waiver thereof thereof; nor shall any single or partial exercise of any such right, power power, privilege or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedyprivilege hereunder. The rights, powers rights and remedies herein expressly provided are cumulative and not exclusive of any rights, powers and rights or remedies provided by law and may be exercised from time which the Mortgagee or any of the Secured Creditors would otherwise have. No notice to time and as often as or demand on the Chargee may deem expedientOwner in any case shall entitle the Owner to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Mortgagee or any of the Secured Creditors to any other or further action in any circumstances without notice or demand; and
6.1.5. (e) any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage or any consent given by the Mortgagee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Mortgagee and the Owner shall be conditional upon no security or payment to the Secured Parties or any of them by the Owner or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Owner, the Secured Creditors or any arrangement is made on other person:
(a) any waiver granted to or composition with the faith Owner or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against the Owner or any other person; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Owner or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents or any other document or security; or
(e) the dissolution, liquidation, by virtue of Section 1001 amalgamation, reconstruction or reorganization of the Taxes Consolidation Act 1997 Owner or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede or compromise in good faith frustration of any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction obligations of the Chargee or as otherwise provided in any other person under the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered other Credit Documents or realised under this Charge or under any other guarantee, security document or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountsecurity.
Appears in 4 contracts
Samples: Indenture of First Naval Mortgage (R&b Falcon Corp), Indenture of First Naval Mortgage (R&b Falcon Corp), Indenture of First Naval Mortgage (R&b Falcon Corp)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations Administrative Agent, the Banks or the Letter of Credit Issuer to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Credit Parties, the Secured Creditors or any arrangement is made on other person:
(a) any time or waiver granted to the faith Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Credit Parties or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Credit Parties or otherwise without limitationany other person; or
(f) the unenforceability, invalidity or frustration of any obligations of any of the Credit Parties or any other person under the Credit Agreement, any of the other Credit Documents (other than this Charge shall continue in force as if there had been no such discharge Mortgage) or arrangement. The Chargee shall be entitled to concede any other document or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentsecurity.
6.3. 5.04 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Trustee, the Owner shall not by virtue of any payment made hereunder on account of the Obligations or as otherwise provided in by virtue of any enforcement by the Credit Agreement Trustee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or by virtue of any relationship between, or transaction involving, the Chargee may at any time keep in Owner and Holdings (whether such relationship or transaction shall constitute the Owner a separate account or accounts (without liability to pay interest thereon) in the name creditor of Holdings, a guarantor of the Chargee for as long as obligations of Holdings or a party subrogated to the Chargee may think fitrights of others against Holdings or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received recovered or realised under this Charge receivable by the Secured Creditors or any other person; or
(b) be entitled to exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guaranteeguaranty, security or agreement relating agreement; or
(c) exercise any right of set-off or counterclaim against Holdings or any such co-surety; or
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from Holdings or any such co-surety; or
(e) unless so directed by the Trustee (when the Owner will prove in whole accordance with such directions), claim as a creditor of Holdings or any such co-surety in part competition with the Trustee. The Owner shall hold in trust for the Trustee and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Trustee any intermediate obligation such payment (including an amount equal to apply any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
5.05 The Owner unconditionally and irrevocably agrees that if any sums hereby secured are not recoverable on the same basis of a guaranty (whether by reason of legal limitation, illegality, disability or incapacity on or of Holdings or the Owner or any part thereof in other person or towards by reason of any other fact or circumstance, and whether or not known to or discoverable by the discharge Owner, Holdings, the Trustee or any other person), then the Owner will, as a separate and independent stipulation and as a primary obligor, pay to the Trustee on demand an amount or amounts equal to the amount or amounts which the Owner would have been liable to pay but for such irrecoverability and will on demand indemnify the Trustee against any loss or liability suffered or incurred by the Secured Creditors or any of them as a result of such amountirrecoverability.
Appears in 3 contracts
Samples: Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp)
Preservation of Security. 6.1. It is hereby agreed and declared that:
6.1.1. the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor Delos or any other person, exercise any rights against the Chargor Delos or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 3 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (International Lease Finance Corp), Term Loan Security Agreement (International Lease Finance Corp)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:that:-
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Indenture Trustee as a continuing security for the payment and discharge of the Secured Obligations Indebtedness and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured ObligationsIndebtedness;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Indenture Trustee shall not have to wait for the Secured Obligations Agent or the Lenders to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Indenture Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Indenture Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Indenture Trustee of any terms of this Charge Mortgage or any consent given by the Indenture Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Indenture Trustee and the Owner shall be conditional upon no security or payment to the Indenture Trustee, the Agent, or the Lenders or any of them by the Companies or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Indenture Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Indenture Trustee and the Lenders under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Companies, the Indenture Trustee, the Lenders or any arrangement is made on other person:-
(a) any time or waiver granted to the faith Companies or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Companies or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Companies or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Security Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Companies or otherwise without limitationany other person; or
(f) the unenforceability, invalidity or frustration of any obligations of any of the Companies or any other person under the Credit Agreement, any of the other Security Documents (other than this Charge shall continue in force as if there had been no such discharge Mortgage) or arrangement. The Chargee shall be entitled to concede any other document or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentsecurity.
6.3. 5.04 Until the Secured Obligations have Indebtedness has been unconditionally and irrevocably satisfied paid and discharged in full to the satisfaction of the Chargee Indenture Trustee, the Owner shall not by virtue of any payment made hereunder on account of the Secured Indebtedness or as otherwise provided in by virtue of any enforcement by the Credit Agreement Indenture Trustee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or by virtue of any relationship between, or transaction involving, the Chargee may at any time keep in Owner and the Guarantor (whether such relationship or transaction shall constitute the Owner a separate account or accounts (without liability to pay interest thereon) in the name creditor of the Chargee for as long as Guarantor, a guarantor of the Chargee may think fitobligations of the Guarantor or a party subrogated to the rights of others against the Guarantor or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):-
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received recovered or realised under this Charge receivable by the Indenture Trustee or the Lenders or any other person; or
(b) be entitled to exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement relating agreement; or
(c) exercise any right of set-off or counterclaim against the Guarantor or any such co-surety; or
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Guarantor or any such co-surety; or
(e) unless so directed by the Indenture Trustee (when the Owner will prove in whole accordance with such directions), claim as a creditor of the Guarantor or any such co-surety in part competition with the Indenture Trustee. The Owner shall hold in trust for the Indenture Trustee and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Indenture Trustee any intermediate obligation such payment (including an amount equal to apply any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
5.05 The Owner unconditionally and irrevocably agrees that if any sums hereby secured are not recoverable on the same basis of a guarantee (whether by reason of legal limitation, illegality, disability or incapacity on or of the Guarantor or the Owner or any part thereof in other person or towards by reason of any other fact or circumstance, and whether or not known to or discoverable by the discharge Owner, the Guarantor, the Indenture Trustee or any other person), then the Owner will, as a separate and independent stipulation and as a primary obligor, pay to the Indenture Trustee on demand an amount or amounts equal to the amount or amounts which the Owner would have been liable to pay but for such irrecoverability and will on demand indemnify the Indenture Trustee against any loss or liability suffered or incurred by the Indenture Trustee and the Lenders or any of them as a result of such amountirrecoverability.
Appears in 2 contracts
Samples: Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp)
Preservation of Security. 6.1. 7.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security Security Interest so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other [Security Documents];
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 7.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Company or the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
7.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or compromise in good faith with the Company or any claim that other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any such paymentrights, security remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Company or repaymentany other person;
(d) any amendment or supplement to the Sale Agreement, the other Security Documents or any other document or security;
(e) the dissolution, liquidation, merger, consolidation, reconstruction or reorganisation of the Company or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Sale Agreement, the other Security Documents or any other document or security.
6.3. 7.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as otherwise provided a creditor of the Company or any such co-surety in competition with the Credit Agreement Chargee.
7.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Security AgreementChargee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
7.6 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate immediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 2 contracts
Samples: Share Charge Agreement (Golden Meditech Holdings LTD), Share Charge Agreement (Golden Meditech Holdings LTD)
Preservation of Security. 6.1. It is hereby agreed and declared that:
6.1.1. the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor Borrowers or any other person, exercise any rights against the Chargor a Borrower or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountamount except as otherwise provided in the Loan Documents.
Appears in 2 contracts
Samples: Aircraft Mortgage and Security Agreement (International Lease Finance Corp), Term Loan Credit Agreement (International Lease Finance Corp)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge IPCo Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (present or future contractual or other right or remedy or any right of set-off) which guarantee or other Security Interest held by or available to the Chargee may hold at any time Mortgagee providing collateral for the Secured Obligations or any of themObligations;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeIPCo Mortgage;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge IPCo Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law Laws and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge IPCo Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this IPCo Mortgage between the Mortgagee and the Mortgagor shall be subject to the condition subsequent that no security or payment to the Mortgagee by the Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this IPCo Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by Alibaba, the Mortgagor, the Mortgagee or any arrangement is made on other Person:
6.3.1 any time or waiver granted to or composition with the faith Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.2 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against the Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Mortgagor or must be repaid on bankruptcyany other Person under any other Transaction Document or otherwise;
6.3.4 any amendment or supplement to any Transaction Document or any other document or security;
6.3.5 the dissolution, liquidation, by virtue amalgamation, merger, consolidation, reconstruction or reorganization of Section 1001 any Person; or
6.3.6 the unenforceability, invalidity or frustration of any obligations of the Taxes Consolidation Act 1997 Mortgagor or otherwise without limitation, this Charge shall continue any other Person under any Transaction Document or any other document or security in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentjurisdiction.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full full, the Mortgagor shall not by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this IPCo Mortgage:
6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against any such co-surety;
6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee. The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the satisfaction Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementoccurrence of an Event of Default, the Chargee Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations IPCo Mortgage without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountSecured Obligations.
Appears in 2 contracts
Samples: Framework Agreement (Alibaba Group Holding LTD), Framework Agreement (Yahoo Inc)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. (d) any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage between the Mortgagee and the Mortgagor shall be conditional upon no security or payment to the Mortgagee by the Company or the Mortgagor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred the payment of which amounts shall, for the avoidance of doubt, form part of the Secured Obligations.
6.3 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including whether or not known to or discoverable by the Company, the Mortgagor, the Mortgagee or any arrangement is other person:
(a) any time or waiver granted to or composition with the Mortgagor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Mortgagor or any other person;
(c) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the the Mortgagor or any other person; or
(d) the unenforceability, invalidity or frustration of any obligations of the Mortgagor or any other person under the Loan Agreement and the other Loan Documents or any other document or security.
6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full, the Mortgagor shall not by virtue of any payment made hereunder on account of the faith Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Mortgage or the Loan Agreement and the other Loan Documents or by virtue of any relationship between or transaction involving the Mortgagor and/or the Company (whether such relationship or transaction shall constitute the Mortgagor as a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
(a) exercise any rights of subrogation against the Company or any other person in relation to any rights, security or moneys held or received or receivable by the Mortgagee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such paymentdistribution, security or other disposition is liable indemnity from the Company or any such co-surety; or
(e) unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Mortgagee. The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to avoidance the Mortgagee any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.3. 6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementto, the Chargee Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of the Secured Obligations or any other amount owing or payable under the Loan Agreement and the other Loan Documents; provided that the Mortgagee shall be obliged to apply amounts standing to the credit of such amountaccount or accounts once the aggregate amount held by the Mortgagee in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations in full.
6.6 The Mortgagor shall use its reasonable best efforts to ensure, without the prior written consent of the Mortgagee:
(a) no rights attaching to the Mortgaged Property is varied or abrogated in a manner that is adverse to the interest of the Mortgagee;
(b) no Mortgaged Property is consolidated, sub-divided or converted or the capital of the Company to be re-organised, exchanged or repaid in a manner that is adverse to the interest of the Mortgagee; or
(c) nothing is done which may depreciate, jeopardise or otherwise prejudice the value of the security hereby given.
6.7 The Mortgagor hereby covenants that during the Security Period it will remain the legal and beneficial owner of the Mortgaged Property (subject to the Security Interests hereby created) and that it will not:
(a) create or suffer the creation of any Security Interests (other than those created by this Mortgage) or any other interest on or in respect of the whole or any part of the Mortgaged Property or any of its interest therein other than any interest that may be granted to the Mortgagee; or
(b) sell, assign, transfer or otherwise dispose of any of its interest in the Mortgaged Property without the prior consent in writing of the Mortgagee.
6.8 The Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Property and the Mortgagee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure the Mortgagor to perform its obligations in respect thereof.
6.9 The Mortgagor shall ensure that it shall not, without the prior written consent of the Mortgagee, use its voting rights to permit the Company to amend its memorandum or articles of association in a way which could be expected to adversely affect the interests of the Mortgagee.
6.10 The Mortgagor shall procure that the Company shall not:
(a) register any transfer of the Mortgaged Shares to any person (except to the Mortgagee or its nominees pursuant to the provisions of this Mortgage);
(b) issue any replacement share certificates in respect of any of the Mortgaged Shares;
(c) continue its existence under the laws of any jurisdiction other than the Cayman Islands;
(d) do anything which might prejudice its status as an exempted company;
(e) exercise any rights of forfeiture over any of the Mortgaged Shares; or
(f) purchase, redeem, otherwise acquire, cancel, amalgamate, reclassify or otherwise restructure any of the Mortgaged Property, other than in connection with transactions: (i) that equally affect all shareholders of BONA holding the same class of shares as that of the Mortgaged Shares, and (ii) whereby any securities (including additional capital stock or other equity securities or other interests in BONA), property, interest, dividends and other payments and distributions issued as an addition to, in redemption of, in renewal or exchange for, in substitution or upon conversion of, or otherwise on account of, such Mortgaged Property shall be mortgaged to the Mortgagee pursuant to a share mortgage on the same terms and conditions (applying mutatis mutandis) as this Mortgage. during the Security Period without the prior written consent of the Mortgagee.
6.11 The Mortgagor shall procure that the Company shall register any transfer of the Mortgaged Shares made in compliance with the then-effective memorandum and articles of association of the Company and all applicable law by the Mortgagee or its nominee to any other person pursuant to the exercise of the Mortgagee’s rights under this Mortgage.
Appears in 2 contracts
Samples: Equitable Share Mortgage (Fosun International LTD), Equitable Share Mortgage (Yu Dong)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:that:-
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations or Agent to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Secured Creditors or any arrangement is made on other person:-
(a) any time or waiver granted to the faith Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Credit Parties or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Credit Parties or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede or compromise in good faith frustration of any claim that obligations of any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Credit Parties or as otherwise provided in any other person under the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered other Security Documents (other than this Mortgage) or realised under this Charge or under any other guarantee, security document or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountsecurity.
Appears in 2 contracts
Samples: Mortgage Agreement (Reading & Bates Corp), Mortgage Agreement (Reading & Bates Corp)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice or merge with or otherwise be prejudiced or affected by any present or future contractual or other security (right or remedy or any right of set-off) which guarantee or other Security Interest held by or available to the Chargee may hold at any time as security for the Secured Obligations or any of themObligations;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Charge are cumulative and not exclusive of any rights, powers and remedies provided by law Laws and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole or in part or any arrangement is made on under this Charge between the faith of any payment, Chargee and the Chargor shall be subject to the condition subsequent that no security or other disposition which is payment to the Chargee being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Chargor, the Chargee or any other Person:
(a) any time or waiver granted to or composition with the Chargor or any other Person under any other Transaction Document or otherwise;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Chargor or any other Person under any other Transaction Document or otherwise;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Chargor or repaymentany other Person under any other Transaction Document or otherwise;
(d) any amendment or supplement to any Transaction Document or any other document or security;
(e) the dissolution, liquidation, amalgamation, merger, consolidation, reconstruction or reorganization of any Person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Chargor or any other Person under any Transaction Document or any other document or security in any jurisdiction.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full full, the Chargor shall not by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge:
(a) exercise any rights of subrogation in relation to any rights, insurance, security or moneys held or received or receivable by the Chargee;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against any co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from any co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of any co-surety in competition with the Chargee.
6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or Transfer (as appropriate) to the satisfaction Chargee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.6 Until the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementoccurrence of an Event of Default, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountSecured Obligations.
Appears in 2 contracts
Samples: Framework Agreement (Alibaba Group Holding LTD), Framework Agreement (Yahoo Inc)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (present or future contractual or other right or remedy or any right of set-off) which guarantee or other Security Interest held by or available to the Chargee may hold at any time Mortgagee providing collateral for the Secured Obligations or any of themObligations;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law Laws and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage among the Mortgagee and the Mortgagors shall be subject to the condition subsequent that no security or payment to the Mortgagee by any Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagors on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by Alibaba, any Mortgagor, the Mortgagee or any arrangement is made on other Person:
6.3.1 any time or waiver granted to or composition with either Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.2 the faith taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against either Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to either Mortgagor or must be repaid on bankruptcyany other Person under any other Transaction Document or otherwise;
6.3.4 any amendment or supplement to any Transaction Document or any other document or security;
6.3.5 the dissolution, liquidation, by virtue amalgamation, merger, consolidation, reconstruction or reorganization of Section 1001 any Person; or
6.3.6 the unenforceability, invalidity or frustration of the Taxes Consolidation Act 1997 any obligations of either Mortgagor or otherwise without limitation, this Charge shall continue any other Person under any Transaction Document or any other document or security in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentjurisdiction.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full full, neither Mortgagor shall by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Mortgage:
6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against any such co-surety;
6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the applicable Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee. Each Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the satisfaction Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementoccurrence of an Event of Default, the Chargee Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations Mortgage without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountSecured Obligations.
Appears in 2 contracts
Samples: Framework Agreement (Alibaba Group Holding LTD), Framework Agreement (Yahoo Inc)
Preservation of Security. 6.1. (a) It is hereby agreed and declared that:
6.1.1. (i) the security created by this Charge Mortgage shall be held by the Chargee Lender as a continuing security for the payment and discharge of the Secured Obligations Liabilities and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured ObligationsLiabilities;
6.1.2. (ii) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Lender shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. (iii) no delay or omission on the part of the Chargee Lender in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Lender may deem expedient; and
6.1.5. (iv) any waiver by the Chargee Lender of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where (b) Any settlement or discharge under this Mortgage between the Lender and the Chargor shall be conditional upon no security or payment to the Lender by the Chargor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Lender shall be entitled to recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred the payment of which amounts shall, for the avoidance of doubt, form part of the Secured Liabilities.
(c) The rights of the Lender under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including and whether or not known to or discoverable by the Company, the Chargor, the Lender or any arrangement other person:
(i) any time or waiver granted to or composition with the Company, the Chargor or any other person;
(ii) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce, any rights, remedies or securities against the Company, the Chargor or any other person;
(iii) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Chargor or any other person;
(iv) any amendment or supplement to any Finance Document or any other document or security (including any amendment the effect of which is to change the nature or amount of any facilities made available thereunder or to change the nature or extent of any obligations thereunder);
(v) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Company, Chargor or any other person; or
(vi) the unenforceability, invalidity or frustration of any obligations of the Company, the Chargor or any other person under any Finance Document or any other document or security.
(d) The Chargor shall not, during the Security Period, by virtue of any payment made hereunder on account of the faith Secured Liabilities or by virtue of any enforcement by the Lender of its rights under, or the security constituted by, this Mortgage or any Finance Document or by virtue of any relationship between or transaction involving the Chargor and/or the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
(i) exercise any rights of subrogation against the Company or any other person in relation to any rights, security or moneys held or received or receivable by the Lender or any person;
(ii) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(iii) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(iv) receive, claim or have the benefit of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such paymentdistribution, security or other disposition is liable indemnity from the Company or any such co-surety; or
(v) unless so directed by the Lender (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Lender. The Chargor shall hold in trust for the Lender and forthwith pay or transfer (as appropriate) to avoidance the Lender any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee (e) The Lender may at any time during the Security Period keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Lender for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations Liabilities without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of the Secured Liabilities or any other amount owing or payable under any Finance Document; provided that the Lender shall be obliged to apply amounts standing to the credit of such amountaccount or accounts once the aggregate amount held by the Lender in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Liabilities in full.
(f) Subject to Clause 7 (Rights in respect of Security Assets), the Chargor shall be entitled to exercise or direct the exercise of the voting and other rights attached to any Security Asset as it sees fit provided that:
(i) it does so for a purpose not prohibited by any Finance Document or that would breach the terms of any Finance Document;
(ii) it does so in a manner that does not affect the validity or enforceability of the Security and does not cause an Event of Default to occur; and
(iii) the exercise of or failure to exercise those rights would not have a material adverse effect on the value of the Security Assets and would not otherwise prejudice the interests of the Lender under any Finance Document.
(g) The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Security Assets and the Lender shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Chargor to perform its obligations in respect thereof.
Appears in 1 contract
Preservation of Security. 6.1. It is hereby agreed and declared that:
6.1.1. the 8.1 The security created by this Charge Agreement shall be held by the Chargee as a continuing security for the due and punctual payment and discharge of the Secured Obligations and the security so created Obligations, it shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is Obligations and it shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (that the Pledgee may have in relation to the Secured Obligations.
8.2 The Pledgee shall not be obliged to make any enquiry as to the nature or sufficiency of any right of set-off) payment received by it or to make any claim or to take any action to collect any moneys or to enforce any rights and benefits hereby assigned or charged to the Pledgee or to which the Chargee Pledgee may hold at any time be entitled hereunder.
8.3 This Agreement and the security constituted hereby shall be in addition, and without prejudice to, and not in substitution for any rights whatsoever which the Pledgee may have for the time being and from time to time under or by virtue of any other agreement (including without limitation any other security that the Pledgee may have in relation to the Secured Obligations Obligations) and/or any other agreement, document, guarantee or any of them;
6.1.3security whatsoever. the Chargee The Pledgee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other agreement, guarantee or security whatsoever before enforcing the security created by this Charge;Agreement.
6.1.4. no delay 8.4 Each and every power and remedy given to the Pledgee under this Agreement or omission on otherwise existing may be exercised in accordance with the part terms of this Agreement from time to time and as often and in such order as may be deemed expedient by the Pledgee and the exercise or the beginning of the Chargee in exercising exercise of any right, power or remedy under this Charge shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. It is expressly understood and agreed that no delay or omission by the Pledgee in the exercise of any right or power or in the pursuit of any remedy accruing upon any Event of Default shall impair any such right, power or remedy or be construed as to be a waiver thereof or of any such Event of Default or to be an acquiescence therein, nor shall any single acceptance by the Pledgee of any security or partial any payment on account of the Secured Obligations be deemed a waiver of any right to take advantage of any future Event of Default.
8.5 Until the expiry of the Security Period:
(a) the Pledgor shall not participate in any security held or sums received by the Pledgee in respect of all or any part of the Secured Obligations;
(b) the Pledgor shall not stand in the place of, or be subrogated for, the Pledgee in respect of any security nor take any step to enforce any claim against the Borrower nor claim or exercise any right of set off or counterclaim against the Pledgee, nor make any claim in the bankruptcy or liquidation of the Borrower in respect of any sums paid by the Borrower to the Pledgee or in respect of any sum which constitutes the proceeds of realization of the security constituted by this Agreement; and
(c) the Pledgor shall not take any steps to enforce any claim which it may have against the Borrower without the prior written consent of the Pledgee, and then only on such terms and subject to such conditions as the Pledgee may prescribe.
8.6 Any settlement or discharge under this Agreement between the Parties shall be conditional upon no security or payment to the Pledgee by the Pledgor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, receivership, administration, examinership, liquidation or other similar process for the time being in force and, if such condition is not satisfied, the Pledgee shall be entitled to recover from the Pledgor forthwith on demand the value of such security or the amount of any such rightpayment as if such settlement or discharge had not occurred.
8.7 The rights of the Pledgee under this Agreement and the security hereby constituted shall not be affected by any act, power omission, matter or remedy preclude any further exercise thereof thing (whether or not known to or discoverable by the exercise of Pledgee or any other rightperson) which, power but for this provision, might operate to impair, affect or remedy. The rights, powers discharge such rights and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any discharge is made security (in whole or in part part), including without limitation:
(a) any amendment, novation, replacement or supplement (however fundamental) to the Facility Agreement or any arrangement is made on the faith other Finance Document;
(b) any variation, determination, increase or reduction of any paymentfacility provided by the Pledgee or otherwise to the Borrower or any other person;
(c) the variation, compromise, taking, exchange, renewal or release of, or refusal or neglect to perfect, take-up or enforce, any rights against, remedies or securities over assets of the Borrower or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d) any legal limitation, disability, death, incapacity or other circumstances relating to the Borrower or any other person;
(e) any time, indulgence, waiver or consent granted to or composition with the Borrower or any other person;
(f) any renewal of any bills, notes or other negotiable securities;
(g) the dissolution, liquidation, receivership, insolvency, amalgamation, bankruptcy, reconstruction or reorganisation of the Borrower or any other person or the appointment of an examiner in respect of the Borrower or any other person;
(h) the absence of or any defective, excessive or irregular exercise of any of the powers of the Borrower or any other person;
(i) the invalidity, unenforceability, illegality or frustration of any obligations of the Borrower or any other person under the Facility Agreement or any other document or security; or
(j) the release of the Borrower or any other person under the terms of any composition or arrangement with any creditor of the Borrower or any such person.
8.8 Until the expiry of the Security Period the Pledgee may:
(a) refrain from applying or enforcing any other moneys, security or other disposition which is avoided rights held or must be repaid on bankruptcy, liquidation, received by virtue of Section 1001 it in respect of the Taxes Consolidation Act 1997 Secured Obligations or otherwise without limitation, this Charge apply and enforce the same in such manner and order as it seems fit (whether against the Secured Obligations or otherwise) and the Pledgor shall continue in force as if there had been no such discharge or arrangement. The Chargee shall not be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction benefit of the Chargee or as otherwise provided same; and
(b) hold in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate an interest-bearing suspense account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered from the Pledgor or realised under this Charge or under any other guarantee, security or agreement relating otherwise in whole or in part to respect of the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountObligations.
Appears in 1 contract
Samples: Pledge and Charge Agreement (Baring Vostok Fund v Nominees LTD)
Preservation of Security. 6.1. 5.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security Security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other transaction security documents;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 5.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
5.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or compromise with the Borrower, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Borrower, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Borrower, the Chargor or any other person;
(d) any amendment or supplement to the Loan Agreements, the memorandum and articles of association of the Chargor or any other document or security;
(e) the dissolution, liquidation, merger, consolidation, reconstruction or reorganization of the Borrower, the Chargor or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Borrower or any other person under the Loan Agreements or any other document or security.
5.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in good faith full pursuant to the terms of the Finance Documents, the Chargor shall not by virtue of any claim that payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving the Chargor and the Borrower (whether such paymentrelationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the Charged Shares):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other disposition is liable to avoidance guarantee, security or repaymentagreement;
(c) exercise any right of set-off or counterclaim against the Borrower or any such co- surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Borrower or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Borrower or any such co-surety in competition with the Chargee.
6.3. 5.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set- off), distribution or benefit of such security, indemnity or claim in fact received by it.
5.6 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security AgreementChargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate immediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. a. the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. b. the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Loan Documents;
6.1.3. c. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. d. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. e. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole or in part or any arrangement is made on under this Charge between the faith of any payment, Chargee and the Chargor shall be conditional upon no security or other disposition which is payment to the Chargee by the Company being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from each of the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred, such amount not to exceed the value of the Charged Property.
6.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
a. any time or waiver granted to or composition with the Company or any other person;
b. the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
c. any legal limitation, disability, incapacity or other circumstances relating to the Company or any other person;
d. any amendment or supplement to the LSA, the other Loan Documents or any other document or security except as otherwise expressly set forth therein;
e. the dissolution, liquidation, reconstruction or reorganisation of the Company or any other person, other than as permitted pursuant to the LSA; or
f. the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the LSA, the other Loan Documents or any other document or security.
6.4 Until the Chargee has released its lien under the LSA, the Chargor shall not upon any enforcement by the Chargee of the Charged Property:
a. exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
b. exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other disposition is liable guarantee, security or agreement;
c. exercise any right of set-off or counterclaim against the Company or any such co-surety;
d. receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety other than as permitted pursuant to avoidance the LSA; or
e. unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or repaymentany such co-surety in competition with the Chargee.
6.3. 6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security AgreementChargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate immediate obligation to apply the same or any part thereof in or towards the discharge of such amountthe Secured Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Halozyme Therapeutics Inc)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:that:-
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations Agent, the Banks or the Letter of Credit Issuer to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Credit Parties, the Secured Creditors or any arrangement is made on other person:-
(a) any time or waiver granted to the faith Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Credit Parties or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Credit Parties or otherwise without limitationany other person; or
(f) the unenforceability, invalidity or frustration of any obligations of any of the Credit Parties or any other person under the Credit Agreement, any of the other Credit Documents (other than this Charge shall continue in force as if there had been no such discharge Mortgage) or arrangement. The Chargee shall be entitled to concede any other document or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentsecurity.
6.3. 5.04 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Trustee, the Owner shall not by virtue of any payment made hereunder on account of the Obligations or as otherwise provided in by virtue of any enforcement by the Credit Agreement Trustee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or by virtue of any relationship between, or transaction involving, the Chargee may at any time keep in Owner and Holdings (whether such relationship or transaction shall constitute the Owner a separate account or accounts (without liability to pay interest thereon) in the name creditor of Holdings, a guarantor of the Chargee for as long as obligations of Holdings or a party subrogated to the Chargee may think fitrights of others against Holdings or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):-
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received recovered or realised under this Charge receivable by the Secured Creditors or any other person; or
(b) be entitled to exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guaranteeguaranty, security or agreement relating agreement; or
(c) exercise any right of set-off or counterclaim against Holdings or any such co-surety; or
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from Holdings or any such co-surety; or
(e) unless so directed by the Trustee (when the Owner will prove in whole accordance with such directions), claim as a creditor of Holdings or any such co-surety in part competition with the Trustee. The Owner shall hold in trust for the Trustee and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Trustee any intermediate obligation such payment (including an amount equal to apply any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
5.05 The Owner unconditionally and irrevocably agrees that if any sums hereby secured are not recoverable on the same basis of a guaranty (whether by reason of legal limitation, illegality, disability or incapacity on or of Holdings or the Owner or any part thereof in other person or towards by reason of any other fact or circumstance, and whether or not known to or discoverable by the discharge Owner, Holdings, the Trustee or any other person), then the Owner will, as a separate and independent stipulation and as a primary obligor, pay to the Trustee on demand an amount or amounts equal to the amount or amounts which the Owner would have been liable to pay but for such irrecoverability and will on demand indemnify the Trustee against any loss or liability suffered or incurred by the Secured Creditors or any of them as a result of such amountirrecoverability.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security (documents which may cerate a Security Interest on or in respect of the whole or any right part of set-off) which the Chargee may hold at any time for the Secured Obligations or any of themCharged Property;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Company or the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the Security Interest hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with the Company or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Company or repaymentany other person;
(d) any amendment or supplement to the Credit Agreement or any other document or security;
(e) the dissolution, liquidation, reconstruction or reorganisation of the Company or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Credit Agreement or any other document or security.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as otherwise provided a creditor of the Company or any such co-surety in competition with the Credit Agreement Chargee.
6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Security AgreementChargee any such payment (including an amount equal to any such set-off), distribution (other than such dividend or distribution payments described in Clause 5.1(b) or benefit of such security, indemnity or claim in fact received by it.
6.6 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security created by this Charge shall be held by the Chargee as a continuing security Security for the payment and discharge of the Secured Obligations and the security Security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security Security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Security granted in connection with the Finance Documents;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security before enforcing the security Security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the Security hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with any of the Borrowers, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any of the Borrowers, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance any of the Borrowers, the Chargor or repaymentany other person;
(d) any amendment or supplement to the Facility Agreement, the other Finance Documents or any other document or Security;
(e) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of any of the Borrowers, the Chargor or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of any of the Borrowers, the Chargor or any other person under the Facility Agreement, the other Finance Documents or any other document or Security.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee or as otherwise provided in the Credit Agreement of its rights under, or the Security Agreementconstituted by, this Charge or by virtue of any relationship between or transaction involving the Chargor and any of the Borrowers (whether such relationship or transaction shall constitute the Chargor a creditor of any such Borrower, a guarantor of the obligations of any such Borrower or a party subrogated to the rights of others against any such Borrower or otherwise howsoever, whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, Security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, Security or agreement;
(c) exercise any right of set-off or counterclaim against any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, Security or indemnity from the Chargor or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Chargee.
6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set-off), distribution or benefit of such Security, indemnity or claim in fact received by it.
6.6 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Samples: Senior Secured Post Delivery Term Loan Facility Agreement (Knightsbridge Shipping LTD)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-offb) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (c) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (d) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Company or the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with the Company or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Company or repaymentany other person;
(d) any amendment or supplement to the Purchase Agreement, the other Security Documents or any other document or security;
(e) the dissolution, liquidation, merger, consolidation, reconstruction or reorganisation of the Company or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Purchase Agreement, the other Security Documents or any other document or security.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as otherwise provided a creditor of the Company or any such co-surety in competition with the Credit Agreement Chargee.
6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Security AgreementChargee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.6 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate immediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations or Agent to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Secured Creditors or any arrangement is made on other person:
(a) any time or waiver granted to the faith Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Credit Parties or must be repaid on bankruptcyany other person; or
(d) any amendment or supplement to the Credit Agreement, the Subsidiary Guaranty, any of the other Credit Documents (other than this Mortgage) or any other document or security; or
(e) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganization of Section 1001 any of the Taxes Consolidation Act 1997 Credit Parties or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede or compromise in good faith frustration of any claim that obligations of any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Credit Parties or as otherwise provided in any other person under the Credit Agreement or the Security Agreement, the Chargee may at Subsidiary Guaranty, any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered other Security Documents (other than this Mortgage) or realised under this Charge or under any other guarantee, security document or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountsecurity.
Appears in 1 contract
Preservation of Security. 6.1. 5.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Share Mortgage shall be held by the Chargee Security Trustee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Security Trustee shall not be bound obliged to seek make any demand of the Chargor, to recover take any amounts due from the Chargor action or obtain judgment in any other person, exercise any rights court against the Chargor or to make or file any other person proof or claim in a liquidation or insolvency of the Chargor or to enforce or seek to enforce any other security in respect of the Secured Obligations before enforcing the security created by exercising any right, power or remedy under this ChargeShare Mortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Security Trustee in exercising any right, power or remedy under this Charge Share Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Security Trustee may deem expedient; and
6.1.5. (d) any waiver by the Chargee Security Trustee of any terms of this Charge Share Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.25.2 Any settlement, release or discharge under this Share Mortgage between the Security Trustee and the Chargor shall be conditional upon no security or payment to the Security Trustee by the Chargor being avoided or set aside or ordered to be refunded or reduced by virtue of any law, regulation, provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force or for any other reason and, if such condition is not or becomes not satisfied, the obligations of the Chargor under this Share Mortgage and the security hereunder shall continue (as if such settlement, release or discharge had not occurred), and the Security Trustee shall be entitled to recover the security and/or payments hereunder from the Chargor as if such settlement, release or discharge had not occurred. Where If the Security Trustee considers that any amount paid or credited to any Transaction Finance Party by or recovered by any Transaction Finance Party from the Chargor is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liabilities of the Chargor under this Share Mortgage and the security constituted hereby shall continue and such amount shall not be considered to have been irrevocably paid.
5.3 The obligations of the Chargor and the rights of the Security Trustee under this Share Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Issuer, the Chargor, the Security Trustee or any arrangement other person:
(a) any time or waiver granted to or composition with the Issuer, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Issuer, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Issuer, the Chargor or any other person;
(d) any amendment, variation, or supplement to or waiver under the Notes, the Note Trust Deed, the Warrants or the Warrant Trust Deed, or any other document or security;
(e) any amendment, variation, waiver or release of any of the Secured Obligations (in relation to any or all of the Chargor);
(f) any failure to take or failure to realise the value of any other collateral in respect of the Secured Obligations or any release, discharge, exchange or substitution of any such collateral;
(g) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Issuer, the Chargor or any other person;
(h) the unenforceability, invalidity or frustration of any obligations of the Issuer, the Chargor or any other person under the Notes, the Note Trust Deed, the Warrants or the Warrant Trust Deed or any other document or security; or
(i) any other act, event or omission which but for this provision would or might operate to impair, discharge or otherwise affect the obligations of the Chargor hereunder.
5.4 Until (i) all Secured Obligations have been irrevocably discharged in full, (ii) all amounts which may be or become payable by the Chargor under or in connection with the Issue Documents have been irrevocably paid in full and (iii) no Transaction Finance Party is under any further obligation (whether actual or contingent) to provide any further advance or financial accommodation to the Chargor under any Issue Document, the Chargor shall not by virtue of any payment made hereunder on account of the faith Secured Obligations or by virtue of any enforcement by the Security Trustee of its rights under, or the security constituted by, this Share Mortgage or by virtue of any relationship between or transaction involving the Chargor and the Issuer (whether such relationship or transaction shall constitute the Chargor a creditor of the Issuer, a guarantor of the obligations of the Issuer or in part subrogated to the rights of others against the Issuer or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Share Mortgage):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Security Trustee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Issuer or any such co-surety;
(d) receive, claim or have the benefit of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such paymentdistribution, security or other disposition is liable indemnity from the Issuer or any such co-surety; or
(e) unless so directed by the Security Trustee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Issuer or any such co-surety in competition with the Security Trustee. The Chargor shall hold in trust for the Security Trustee and forthwith pay or transfer (as appropriate) to avoidance the Security Trustee any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.35.5 The Chargor shall not accept or permit to subsist any collateral from any other person in respect of any right which the Chargor may have arising out of this Share Mortgage. Notwithstanding the foregoing, if any such collateral shall be accepted or subsisting, the Chargor shall hold any and all rights under such collateral on trust for the Security Trustee.
5.6 Until the (i) all Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full, (ii) all amounts which may be or become payable by any or all of the Chargor under or in connection with the Issue Documents have been irrevocably paid in full and (iii) no Transaction Finance Party is under any further obligation (whether actual or contingent) to provide any further advance or financial accommodation to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or Chargor under any Issue Document, the Security Agreement, the Chargee Trustee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Security Trustee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Share Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations (and whether or not any such Secured Obligations shall have become due) without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountamount pending any further application of such moneys (as the Security Trustee shall be entitled, but not obliged, to do in its discretion) in accordance with the provisions of Clause 9.
Appears in 1 contract
Samples: First Priority Share Mortgage (China Time Share Media Co. LTD)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Security Documents;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any nay single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage between the Mortgagee and the Mortgagor shall be conditional upon no security or payment to the Mortgagee by the Company or the Mortgagor or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Company, the Mortgagor, the Mortgagee or any arrangement is made on other person:
6.3.1 any time or waiver granted to or composition with the faith Company or any other person;
6.3.2 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against the Company or any other person;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Company or must be repaid on bankruptcyany other person;
6.3.4 any amendment or supplement to any Credit Document or any other document or instrument;
6.3.5 the dissolution, liquidation, by virtue of Section 1001 amalgamation, reconstruction or reorganization of the Taxes Consolidation Act 1997 Company or otherwise without limitationany other person; or
6.3.6 the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede frustration of any obligations of the Company or compromise in good faith any claim that other person under any such payment, security Credit Document or any other disposition is liable to avoidance document or repaymentinstrument.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Mortgagee, the Mortgagor shall not by virtue of any payment made hereunder on account of the Secured Obligations or as otherwise provided in by virtue of any enforcement by the Credit Agreement Mortgagee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or by virtue of any relationship between or transaction involving, the Chargee Mortgagor and the Company (whether such relationship or transaction shall constitute the Mortgagor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
6.4.1 exercise any rights or subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee or any person;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against the Company or any such do-surety;
6.4.4 receive, claim or have the benefit or any payment, distribution, security or indemnity from the Company or any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Mortgagee. The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to of the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Samples: Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Preservation of Security. 6.1. It 13.1 The security created by the Chargor pursuant to this Agreement is hereby agreed separate from and declared that:independent of the security created or intended to be created under any other Finance Document.
6.1.1. the 13.2 The security created by this Charge Agreement shall be held by the Chargee as a continuing security for the due and punctual payment when due and discharge of the Secured Obligations and the security so created due and punctual observance when due of all provisions hereof to be observed by the Chargor, it shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is Obligations and it shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (that the Chargee may have in relation to such obligations of the Chargor or the Secured Obligations.
13.3 This Agreement and the security constituted hereby shall be in addition, and without prejudice to, and not in substitution for any right of set-off) rights whatsoever which the Chargee may hold at any time have for the Secured Obligations time being and from time to time under or by virtue of any of them;
6.1.3Finance Document and/or any other agreement, document, guarantee or security whatsoever. the The Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other agreement, guarantee or security whatsoever before enforcing the security created by this Charge;
6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is givenAgreement.
6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. 13.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied paid and discharged in full full:-
(i) The Chargor shall not be entitled to participate in any security held or sums received by the Chargee in respect of all or any part of the Secured Obligations under the Finance Documents;
(ii) The Chargor shall not claim or exercise any right of set off or counterclaim against the Chargee or the Company, nor make any claim in the bankruptcy or liquidation of the Company in respect of any sum which constitutes the proceeds of realization of the security constituted by this Agreement;
(iii) The Chargor shall not take any steps to enforce any claim which it may have against the Company without the prior written consent of the Chargee, and then only on such terms and subject to such conditions as the Chargee may prescribe.
13.5 Any settlement or discharge under this Agreement between the Chargee and the Chargor shall be conditional upon no security or payment to the satisfaction Chargee by the Chargor being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, receivership, administration, liquidation or other similar process for the time being in force and, if such condition is not satisfied, the Chargee shall be entitled to recover from the Chargor forthwith on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
13.6 The rights of the Chargee under this Agreement and the security hereby constituted shall not be affected by any act, omission, matter or as thing (whether or not known to or discoverable by the Chargee or any other person) which, but for this provision, might operate to impair, affect or discharge such rights and security (in whole or in part), including without limitation:-
(i) any amendment, novation, replacement or supplement (however fundamental) to all or any of the Finance Documents; or
(ii) any variation, determination, increase or reduction of any facility provided by the Chargee or otherwise provided to the Chargor;
(iii) the variation, compromise, taking, exchange, renewal or release of, or refusal or neglect to perfect, take-up or enforce, any rights against, remedies or securities over assets of any one or more of the Company, the Chargor or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any legal limitation, incapacity or other circumstances relating to any one or more of the Company or the Chargor;
(v) any time, indulgence, waiver or consent granted to or composition with any one or more of the Company, the Chargor or any other person;
(vi) the dissolution, liquidation, receivership, insolvency, amalgamation, reconstruction or reorganisation of any one or more of the Company or the Chargor;
(vii) the absence of or any defective, excessive or irregular exercise of any of the powers of any one or more of the Company or the Chargor;
(viii) the invalidity, unenforceability, illegality or frustration of any obligations of any one or more of the Company, the Chargor or any other person under any Finance Document or any other document or security; or
(ix) the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor or any such person.
13.7 Prior to the payments received under any Finance Document in accordance with the Credit Agreement or the Security Agreement, the Chargee may may, at its discretion:
(i) refrain from applying or enforcing any time keep other moneys, security or rights held or received by it in a separate respect of the Secured Obligations or apply and enforce the same in such manner and order as it seems fit (whether against the Secured Obligations or otherwise) and the Chargor shall not be entitled to the benefit of the same; and
(ii) hold all or part of those monies, in an interest bearing suspense or impersonal account in its name or accounts (without liability to pay interest thereon) in the name of the Chargee with any financial institution (including itself) and for as so long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part thinks fit (the interest being credited to the Secured Obligations without being under any intermediate obligation relevant account) pending the application from time to apply time of those monies at the same or any part thereof Chargee's discretion in or towards accordance with the discharge provisions of such amountthe Credit Agreement.
Appears in 1 contract
Samples: Pledge and Charge Over Shares Agreement (Solonin Sergey)
Preservation of Security. 6.1. 7.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Collateral Agent as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Collateral Agent shall not be bound obliged to make any demand on any Obligor, to take any action or obtain judgment in any court against any Obligor or to make or file any proof or claim in a liquidation or insolvency of any Obligor or to enforce or seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security in respect of the Secured Obligations before enforcing the security created by exercising any right, power or remedy under this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Collateral Agent (acting on the instructions of the Noteholders) in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law or the Securities Purchase Agreement and may be exercised from time to time and as often as the Chargee Collateral Agent may deem expedient; and
6.1.5. (d) any waiver by the Chargee Collateral Agent of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.27.2 Any settlement, release or discharge under this Mortgage between the Collateral Agent and the Chargor shall be conditional upon no security or payment to the Collateral Agent by any Company or the Chargor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any law, regulation, provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force or for any other reason and, if such condition is not or becomes not satisfied, the obligations of the Chargor under this Mortgage and the security hereunder shall continue (as if such settlement, release or discharge had not occurred), and the Collateral Agent shall be entitled to recover the security and payments hereunder from the Chargor as if such settlement, release or discharge had not occurred. Where If the Collateral Agent considers that any amount paid or credited to any Secured Party by or recovered by any Secured Party from any Obligor is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Mortgage and the security constituted hereby shall continue and such amount shall not be considered to have been irrevocably paid.
7.3 The obligations of the Chargor and the rights of the Collateral Agent under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by any Company, the Chargor, the Collateral Agent or any arrangement is made on other person:
(a) any time or waiver granted to or composition with any Company, the faith Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any Company, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to any Company, the Chargor or any other person;
(d) any amendment, variation, supplement or waiver under the Securities Purchase Agreement or the GSS Notes;
(e) any amendment, variation, waiver or release of any paymentof the Secured Obligations;
(f) any failure to take or failure to realise the value of any other collateral in respect of the Secured Obligations or any release, security discharge, exchange or other disposition which is avoided or must be repaid on bankruptcysubstitution of any such collateral;
(g) the dissolution, liquidation, by virtue amalgamation, reconstruction or reorganisation of Section 1001 any Company, the Chargor or any other person;
(h) the unenforceability, invalidity or frustration of any obligations of any Company, the Chargor or any other person under the Securities Purchase Agreement, the GSS Notes or any other document or security; or
(i) any other act, event or omission which but for this provision would or might operate to impair, discharge or otherwise affect the obligations of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentChargor hereunder.
6.3. 7.4 Until the (i) all Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full in cash, and (ii) all amounts which may be or become payable by any or all of the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Collateral Agent of its rights under, or the security constituted by, this Mortgage or by virtue of any relationship between or transaction involving the Chargor and any Company (whether such relationship or transaction shall constitute the Chargor a creditor of any Company, a guarantor of the obligations of any Company or in part subrogated to the satisfaction rights of the Chargee others against any Company or as otherwise provided howsoever and whether or not such relationship or transaction shall be related to, or in the Credit Agreement or the Security Agreementconnection with, the Chargee may at subject matter of this Mortgage):
(a) exercise any time keep rights of subrogation in a separate account relation to any rights, security or accounts moneys held or received or receivable by the Collateral Agent or any person;
(without liability to pay interest thereonb) exercise any right of contribution from any co-surety liable in the name respect of the Chargee for as long as the Chargee may think fit, any such moneys received recovered or realised under this Charge or and liabilities under any other guarantee, security or agreement relating agreement;
(c) exercise any right of set-off or counterclaim against the relevant Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the relevant Company or any such co-surety; or
(e) unless so directed in whole writing by the Collateral Agent (when the Chargor will prove in accordance with such directions), claim as a creditor of the relevant Company or any such co-surety in part competition with the Collateral Agent. The Chargor shall hold in trust for the Collateral Agent and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Collateral Agent any intermediate obligation such payment (including an amount to apply the same any such set off), distribution or any part thereof in or towards the discharge benefit of such amountsecurity, indemnity or claim in fact received by it.
7.5 The Chargor shall not accept or permit to subsist any collateral from any other person in respect of any right which the Chargor may have arising out of this Mortgage. Notwithstanding the foregoing, if any such collateral shall be accepted or subsisting, the Chargor shall hold any and all rights under such collateral on trust for the Collateral Agent.
Appears in 1 contract
Preservation of Security. 6.1. 7.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Cayman Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Cayman Obligations;
6.1.2. (b) the security Security Interest so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any Security Interest created pursuant to any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of themLoan Document;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 7.2 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part or any arrangement is made on the faith of any paymentpart, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise including without limitation, this Charge shall continue in force as if there had been no such discharge and whether or arrangement. The Chargee shall be entitled not known to concede or compromise in good faith any claim that any such paymentdiscoverable by the Company, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of Chargor, the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any other person:
(a) any time keep in a separate account or accounts (without liability waiver granted to pay interest thereon) in or composition with the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered Company or realised under this Charge or under any other guaranteeperson;
(f) the taking, security variation, compromise, renewal or agreement relating in whole release of or in part refusal or neglect to perfect or enforce any rights, remedies or securities against the Secured Obligations without being under any intermediate obligation to apply the same Company or any part thereof in or towards the discharge of such amount.other person;
Appears in 1 contract
Samples: Second Priority Charge Agreement (Rightside Group, Ltd.)
Preservation of Security. 6.1. 7.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Collateral Agent as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Collateral Agent shall not be bound obliged to make any demand on any Obligor, to take any action or obtain judgment in any court against any Obligor or to make or file any proof or claim in a liquidation or insolvency of any Obligor or to enforce or seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security in respect of the Secured Obligations before enforcing the security created by exercising any right, power or remedy under this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Collateral Agent (acting on the instructions of the Noteholders) in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law or the Securities Purchase Agreement and may be exercised from time to time and as often as the Chargee Collateral Agent may deem expedient; and
6.1.5. (d) any waiver by the Chargee Collateral Agent of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.27.2 Any settlement, release or discharge under this Mortgage between the Collateral Agent and the Chargor shall be conditional upon no security or payment to the Collateral Agent by the Company or the Chargor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any law, regulation, provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force or for any other reason and, if such condition is not or becomes not satisfied, the obligations of the Chargor under this Mortgage and the security hereunder shall continue (as if such settlement, release or discharge had not occurred), and the Collateral Agent shall be entitled to recover the security and payments hereunder from the Chargor as if such settlement, release or discharge had not occurred. Where If the Collateral Agent considers that any amount paid or credited to any Secured Party by or recovered by any Secured Party from any Obligor is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Chargor under this Mortgage and the security constituted hereby shall continue and such amount shall not be considered to have been irrevocably paid.
7.3 The obligations of the Chargor and the rights of the Collateral Agent under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Collateral Agent or any arrangement is made on other person:
(a) any time or waiver granted to or composition with the faith Company, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Chargor or any other person;
(d) any amendment, variation, supplement or waiver under the Securities Purchase Agreement or the GSS Notes;
(e) any amendment, variation, waiver or release of any paymentof the Secured Obligations;
(f) any failure to take or failure to realise the value of any other collateral in respect of the Secured Obligations or any release, security discharge, exchange or other disposition which is avoided or must be repaid on bankruptcysubstitution of any such collateral;
(g) the dissolution, liquidation, by virtue of Section 1001 amalgamation, reconstruction or reorganisation of the Taxes Consolidation Act 1997 Company, the Chargor or any other person;
(h) the unenforceability, invalidity or frustration of any obligations of the Company, the Chargor or any other person under the Securities Purchase Agreement, the GSS Notes or any other document or security; or
(i) any other act, event or omission which but for this provision would or might operate to impair, discharge or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentaffect the obligations of the Chargor hereunder.
6.3. 7.4 Until the (i) all Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full in cash, and (ii) all amounts which may be or become payable by any or all of the Obligors under or in connection with the Transaction Documents have been irrevocably paid in full, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Collateral Agent of its rights under, or the security constituted by, this Mortgage or by virtue of any relationship between or transaction involving the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the satisfaction rights of others against the Chargee Company or as otherwise provided howsoever and whether or not such relationship or transaction shall be related to, or in the Credit Agreement or the Security Agreementconnection with, the Chargee may at subject matter of this Mortgage):
(a) exercise any time keep rights of subrogation in a separate account relation to any rights, security or accounts moneys held or received or receivable by the Collateral Agent or any person;
(without liability to pay interest thereonb) exercise any right of contribution from any co-surety liable in the name respect of the Chargee for as long as the Chargee may think fit, any such moneys received recovered or realised under this Charge or and liabilities under any other guarantee, security or agreement relating agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed in whole writing by the Collateral Agent (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in part competition with the Collateral Agent. The Chargor shall hold in trust for the Collateral Agent and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Collateral Agent any intermediate obligation such payment (including an amount to apply the same any such set off), distribution or any part thereof in or towards the discharge benefit of such amountsecurity, indemnity or claim in fact received by it.
7.5 The Chargor shall not accept or permit to subsist any collateral from any other person in respect of any right which the Chargor may have arising out of this Mortgage. Notwithstanding the foregoing, if any such collateral shall be accepted or subsisting, the Chargor shall hold any and all rights under such collateral on trust for the Collateral Agent.
Appears in 1 contract
Samples: First Equitable Mortgage (Xinyuan Real Estate Co., Ltd.)
Preservation of Security. 6.1. 5.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Share Mortgage shall be held by the Chargee Security Trustee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Security Trustee shall not be bound obliged to seek make any demand of the Chargor, to recover take any amounts due from the Chargor action or obtain judgment in any other person, exercise any rights court against the Chargor or to make or file any other person proof or claim in a liquidation or insolvency of the Chargor or to enforce or seek to enforce any other security in respect of the Secured Obligations before enforcing the security created by exercising any right, power or remedy under this ChargeShare Mortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Security Trustee in exercising any right, power or remedy under this Charge Share Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Security Trustee may deem expedient; and
6.1.5. (d) any waiver by the Chargee Security Trustee of any terms of this Charge Share Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.25.2 Any settlement, release or discharge under this Share Mortgage between the Security Trustee and the Chargor shall be conditional upon no security or payment to the Security Trustee by the Chargor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any law, regulation, provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force or for any other reason and, if such condition is not or becomes not satisfied, the obligations of the Chargor under this Share Mortgage and the security hereunder shall continue (as if such settlement, release or discharge had not occurred), and the Security Trustee shall be entitled to recover the security and/or payments hereunder from the Chargor as if such settlement, release or discharge had not occurred. Where If the Security Trustee considers that any amount paid or credited to any Transaction Finance Party by or recovered by any Transaction Finance Party from the Chargor is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liabilities of the Chargor under this Share Mortgage and the security constituted hereby shall continue and such amount shall not be considered to have been irrevocably paid.
5.3 The obligations of the Chargor and the rights of the Security Trustee under this Share Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Security Trustee or any arrangement other person:
(a) any time or waiver granted to or composition with the Company, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Chargor or any other person;
(d) any amendment, variation, or supplement to or waiver under the Bonds, the Bond Trust Deed, the Notes or the Note Trust Deed, or any other document or security;
(e) any amendment, variation, waiver or release of any of the Secured Obligations (in relation to any or all of the Chargor);
(f) any failure to take or failure to realise the value of any other collateral in respect of the Secured Obligations or any release, discharge, exchange or substitution of any such collateral;
(g) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Company, the Chargor or any other person;
(h) the unenforceability, invalidity or frustration of any obligations of the Company, the Chargor or any other person under the Bonds, the Bond Trust Deed, the Notes and the Note Trust Deed or any other document or security; or
(i) any other act, event or omission which but for this provision would or might operate to impair, discharge or otherwise affect the obligations of the Chargor hereunder.
5.4 Until (i) all Secured Obligations having been irrevocably discharged in full, (ii) all amounts which may be or become payable by the Chargor under or in connection with the Transaction Finance Documents have been irrevocably paid in full and (iii) no Transaction Finance Party is under any further obligation (whether actual or contingent) to provide any further advance or financial accommodation to the Chargor under any Transaction Finance Document, the Chargor shall act by virtue of any payment made hereunder on account of the faith Secured Obligations or by virtue of any enforcement by the Security Trustee of its rights under, or the security constituted by, this Share Mortgage or by virtue of any relationship between or transaction involving the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Share Mortgage):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Security Trustee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such paymentdistribution, security or other disposition is liable indemnity from the Company or any such co-surety; or
(e) unless so directed by the Security Trustee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Security Trustee. The Chargor shall hold in trust for the Security Trustee and forthwith pay or transfer (as appropriate) to avoidance the Security Trustee any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.35.5 The Chargor shall not accept or permit to subsist any collateral from any other person in respect of any right which the Chargor may have arising out of this Share Mortgage. Notwithstanding the foregoing, if any such collateral shall be accepted or subsisting, the Chargor shall hold any and all rights under such collateral on trust for the Security Trustee.
5.6 Until the (i) all Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full, (ii) all amounts which may be or become payable by any or all of the Chargor under or in connection with the Transaction Finance Documents have been irrevocably paid in full and (iii) no Transaction Finance Party is under any further obligation (whether actual or contingent) to provide any further advance or financial accommodation to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or Chargor under any Transaction Finance Document, the Security Agreement, the Chargee Trustee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Security Trustee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Share Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations (and whether or not any such Secured Obligations shall have become due) without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountamount pending any further application of such moneys (as the Security Trustee shall be entitled, but not obliged, to do in its discretion) in accordance with the provisions of Clause 9.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. 6.1.2 the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. 6.1.3 no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and;
6.1.5. 6.1.4 any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.;
6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until 6.1.5 until the Secured Obligations have been unconditionally and irrevocably fully satisfied and discharged in full pursuant to the satisfaction Notes, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving the Chargor and the Chargee (whether such relationship or transaction shall constitute the Chargor a creditor of the Chargee, a guarantor of the obligations of the Chargee or as a party subrogated to the rights of others against the Chargee or otherwise provided howsoever and whether or not such relationship or transaction shall be related to, or in the Credit Agreement or the Security Agreementconnection with, the Chargee may at subject matter of this Charge):
(a) exercise any time keep rights of subrogation in a separate relation to any rights, security or moneys held or received or receivable by or for the account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, Chargee;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys received recovered or realised under this Charge or and liabilities under any other guarantee, security or agreement relating agreement;
(c) exercise any right of set-off or counterclaim against the Chargee or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Chargee or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in whole accordance with such directions), claim as a creditor of the Chargee or any such co-surety in part competition with the Chargee.
6.1.6 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Chargee any intermediate obligation such payment (including an amount equal to apply the same any such set-off), distribution or any part thereof in or towards the discharge benefit of such amountsecurity, indemnity or claim in fact received by it.
6.2 Any settlement or discharge under this Charge between the Chargee and the Chargor shall be conditional upon no Encumbrance created hereunder or payment to the Chargee by the Chargor being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Chargee shall be entitled to recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
Appears in 1 contract
Samples: Note Purchase Agreement (Sequoia Capital 2010 CGF Holdco, Ltd.)
Preservation of Security. 6.1. 5.01 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Trustee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any of the other security Security Documents;
(or any right of set-offc) which the Chargee may hold at any time Trustee shall not have to wait for the Secured Obligations or Administrative Agent to enforce any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security Security Documents before enforcing the security created by this ChargeMortgage;
6.1.4. (d) no delay or omission on the part of the Chargee Trustee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided in this Mortgage are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Trustee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Trustee of any terms of this Charge Mortgage or any consent given by the Trustee under this Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.02 Any settlement or discharge under this Mortgage between the Trustee and the Owner shall be conditional upon no security or payment to the Secured Creditors or any of them by the Credit Parties or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Trustee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.03 The rights of the Secured Creditors under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part or any arrangement is made on the faith of any paymentpart, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise including without limitation, and whether or not known to or discoverable by the Secured Creditors or any other person:
(a) any time or waiver granted to the Credit Parties or any other person; or
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any of the Credit Parties or any other persons; or
(c) any legal limitation, disability, incapacity or other circumstances relating to the Credit Parties or any other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other Credit Documents (other than this Charge shall continue in force Mortgage) or any other document or uch jurisdiction or other judicial authority and for the purpose of any action which the Trustee may bring against the Rig, any writ, notice, judgment or other legal process or documents may (without prejudice to any other method of service under applicable law) be served upon the master of the Rig (or upon anyone acting as if there had been no the master) and such discharge or arrangement. The Chargee service shall be entitled deemed good service on the Owner for all purposes.
19.03 The Owner agrees that should the Trustee bring a legal action or proceedings against it or its assets in relation to concede any matters arising out of or compromise in good faith any claim that connection with this Mortgage, no immunity from such legal action or proceedings (which shall be deemed to include, without limitation, suit, attachment prior to judgment, other attachment, the obtaining of judgment, execution or other enforcement) shall be claimed by or on behalf of the Owner or with respect of its assets, and the Owner hereby irrevocably waives any such payment, security right of immunity which it or other disposition is liable to avoidance its assets now has or repayment.
6.3. Until may hereafter acquire and the Secured Obligations have been unconditionally and irrevocably satisfied and discharged Owner hereby consents generally in full respect of any legal action or proceedings arising out of or in connection with this Mortgage to the satisfaction giving out of the Chargee or as otherwise provided in the Credit Agreement any relief or the Security Agreementissue of any process in connection with such action or proceedings including, without limitation, the Chargee making, enforcement or execution or attachment against any property whatsoever of any order or judgment which may at any time keep be made or given in a separate account such action or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountproceedings.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security Security Interest so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (or any right document that may be executed creating additional security in favour of set-off) which the Chargee may hold at any time for securing the Secured Obligations or any of themObligations;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the Security Interest hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with the Company or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Company or repaymentany other person;
(d) any amendment or supplement to the Settlement Agreement or any other document or security;
(e) the dissolution, liquidation, merger, consolidation, reconstruction or reorganisation of the Company or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Chargor or any other person under the Settlement Agreement or any other document or security.
6.3. 6.4 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set-off, distribution (other than as provided in Paragraph 5.l(b) with respect to dividend or distribution payments)or benefit of such security, indemnity or claim in fact received by it).
6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security AgreementChargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Baring Private Equity Asia v Holding (4) LTD)
Preservation of Security. 6.1. It is hereby agreed and declared that:
6.1.1. the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor Borrowers or any other person, exercise any rights against the Chargor a Borrower or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any discharge is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Samples: Term Loan Security Agreement (International Lease Finance Corp)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Security Agent as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Security Agent shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Security Agent in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Security Agent may deem expedient; and
6.1.5. (d) any waiver by the Chargee Security Agent of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage between the Security Agent and the Mortgagor shall be conditional upon no security or payment to the Security Agent or any other Secured Party by the Company or the Mortgagor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Security Agent shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred the payment of which amounts shall, for the avoidance of doubt, form part of the Secured Obligations.
6.3 The rights of the Security Agent under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including whether or not known to or discoverable by the Company, the Mortgagor, the Security Agent or any arrangement other person:
(a) any time or waiver granted to or composition with the Company, the Mortgagor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Mortgagor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Mortgagor or any other person;
(d) any amendment or supplement to any Transaction Document or any other document or security (including any amendment the effect of which is to change the nature or amount of any facilities made available thereunder or to change the nature or extent of any obligations thereunder);
(e) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Company, the Mortgagor or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company, the Mortgagor or any other person under any Transaction Document or any other document or security.
6.4 Until the Release Date, the Mortgagor shall not by virtue of any payment made hereunder on account of the faith Secured Obligations or by virtue of any enforcement by the Security Agent of its rights under, or the security constituted by, this Mortgage or any Transaction Document or by virtue of any relationship between or transaction involving the Mortgagor and/or the Company (whether such relationship or transaction shall constitute the Mortgagor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
(a) exercise any rights of subrogation against the Company or any other person in relation to any rights, security or moneys held or received or receivable by the Security Agent or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such paymentdistribution, security or other disposition is liable indemnity from the Company or any such co-surety; or
(e) unless so directed by the Security Agent (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Security Agent. The Mortgagor shall hold in trust for the Security Agent and forthwith pay or transfer (as appropriate) to avoidance the Security Agent any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.3. 6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or Release Date, the Security Agreement, the Chargee Agent may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Security Agent for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of the Secured Obligations or any other amount owing or payable under the Transaction Documents; provided that the Security Agent shall be obliged to apply amounts standing to the credit of such amountaccount or accounts once the aggregate amount held by the Security Agent in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations in full.
6.6 The Mortgagor shall not, without the prior written consent of the Security Agent (but subject to the provisions of the Transaction Warrant Instruments and the Transaction Documents):
(a) cause or permit any rights attaching to the Mortgaged Shares to be varied or abrogated;
(b) cause or permit any of the Mortgaged Shares to be consolidated, sub-divided or converted or the capital of the Company to be re-organised, exchanged or repaid; or
(c) cause or permit anything to be done which may depreciate, jeopardise or otherwise prejudice the value of the security hereby given.
6.7 The Mortgagor hereby covenants that during the Security Period it will remain the legal and beneficial owner of the Mortgaged Shares (subject to the Security Interests hereby created) and that it will not:
(a) create or suffer the creation of any Security Interests (other than those created by this Mortgage) or any other interest on or in respect of the whole or any part of the Mortgaged Shares or any of its interest therein;
(b) sell, assign, transfer or otherwise dispose of any of its interest in the Mortgaged Shares except with the prior consent in writing of the Security Agent; or
(c) permit the Register of Members for the Company to be maintained outside of the British Virgin Islands or by a service provider other than the person to whom the letter of instructions in Schedule 6 has been given (unless in the latter case, the Mortgagor have executed and delivered a new letter of instruction in substantially the form of Schedule 6 to the new service provider).
6.8 At no time after the completion of the Relevant Permitted Reorganisation, shall the Mortgagor cease to legally and beneficially own directly 100% of the shares in the Company (of each class) of and equity interests in the Company, free from Security (other than Transaction Security and the Original Holdco Share Mortgage (if any)) and shall not cease to have management control over the Company.
6.9 The Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Shares and the Security Agent shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Mortgagor to perform its obligations in respect thereof.
6.10 The Mortgagor shall ensure that it shall not, without the prior written consent of the Security Agent, use its voting rights to permit the Company to amend its memorandum or articles of association in a way which could be expected to adversely affect the interests of the Security Agent or any of the Secured Parties.
6.11 The Mortgagor shall procure that the Company shall not:
(a) create or permit to subsist any Security Interest upon the whole or any part of its assets, except as permitted under the Facility Agreement (in the form subsisting as at the date of this Mortgage) or by the Security Agent;
(b) register any transfer of the Mortgaged Shares to any person except to the Security Agent or its nominees pursuant to the provisions of this Mortgage;
(c) issue any replacement share certificates in respect of any of the Mortgaged Shares except for any such replacement in connection with a transfer of Mortgaged Shares;
(d) continue its existence under the laws of any jurisdiction other than the British Virgin Islands;
(e) do anything which might prejudice its status as a BVI Business Company;
(f) issue, allot or grant warrants or options with respect to any additional shares, except as permitted under the Facility Agreement (in the form subsisting as at the date of this Mortgage);
(g) exercise any rights of forfeiture over any of the Mortgaged Shares; or
(h) purchase, redeem, otherwise acquire, cancel, sub-divide, amalgamate, reclassify or otherwise restructure any of the Mortgaged Shares, during the Security Period without the prior written consent of the Security Agent.
6.12 The Mortgagor shall procure that the Company irrevocably waives in favour of the Security Agent:
(a) any first and paramount lien; and
(b) any rights of forfeiture, which it may have over the Mortgaged Shares.
6.13 The Mortgagor shall procure that the Company shall irrevocably consent to any transfer of the Mortgaged Shares by the Security Agent or its nominee to any other person pursuant to the exercise of the Security Agent’s rights under this Mortgage.
6.14 The Mortgagor shall procure that the Company shall comply with its memorandum and articles of association and otherwise conduct its affairs in a way which does not prejudice the Security Agent’s legal and economic interests in relation to the Mortgaged Shares.
6.15 The Mortgagor shall not without the prior written consent of the Security Agent participate in any vote concerning a members’ liquidation or compromise pursuant to Section 177 of the BVI Act or Part II of the Insolvency Act.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations Liabilities and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured ObligationsLiabilities;
6.1.2. (b) the security Security Interest so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Finance Documents;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem be expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Company or the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set-aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the Security Interest hereby constituted shall not be affected by any act, security omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with the Company or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance the Company or repaymentany other person;
(d) any amendment or supplement to the Credit Agreement, the Finance Documents or any other document or security;
(e) the dissolution, liquidation, merger, consolidation, reconstruction or reorganisation of the Company or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Credit Agreement, the Finance Documents or any other document or security.
6.3. 6.4 Until the Secured Obligations Liabilities have been unconditionally and irrevocably satisfied and discharged in full in cash, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Liabilities or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the satisfaction rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or as otherwise provided any person;
(b) exercise any right of contribution from any co-surety liable in the Credit Agreement or the Security Agreement, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name respect of the Chargee for as long as the Chargee may think fit, any such moneys received recovered or realised under this Charge or and liabilities under any other guarantee, security or agreement relating agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, dividend payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in whole accordance with such directions), claim as a creditor of the Company or any such co-surety in part competition with the Chargee.
6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Secured Obligations without being under Chargee any intermediate obligation such payment (including an amount equal to apply the same any such set-off), distribution (other than such dividend or any part thereof other distribution payments described in Paragraph 5.1(b)) or towards the discharge benefit of such amountsecurity, indemnity or claim in fact received by it.
Appears in 1 contract
Samples: Senior Secured Credit Facility Agreement (Pacific Drilling S.A.)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Security Documents;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage between the Mortgagee and the Mortgagor shall be conditional upon no security or payment to the Mortgagee by the Company or the Mortgagor or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Company, the Mortgagor, the Mortgagee or any arrangement is made on other person:
6.3.1 any time or waiver granted to or composition with the faith Company or any other person;
6.3.2 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against the Company or any other person;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Company or must be repaid on bankruptcyany other person;
6.3.4 any amendment or supplement to any Credit Document or any other document or instrument;
6.3.5 the dissolution, liquidation, by virtue of Section 1001 amalgamation, reconstruction or reorganisation of the Taxes Consolidation Act 1997 Company or otherwise without limitationany other person; or
6.3.6 the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede frustration of any obligations of the Company or compromise in good faith any claim that other person under any such payment, security Credit Document or any other disposition is liable to avoidance document or repaymentinstrument.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Mortgagee, the Mortgagor shall not by virtue of any payment made hereunder on account of the Secured Obligations or as otherwise provided in by virtue of any enforcement by the Credit Agreement Mortgagee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or by virtue of any relationship between or transaction involving, the Chargee Mortgagor and the Company (whether such relationship or transaction shall constitute the Mortgagor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee or any person;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against the Company or any such co-surety;
6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Mortgagee. The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Preservation of Security. 6.1. 5.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations only and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-offb) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (d) any waiver by the Chargee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 5.2 Any settlement or discharge is made in whole under this Mortgage between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
5.3 The rights of the Chargee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by any of the companies named in Schedule 1, the Chargor, the Chargee or any other person:
(a) any waiver granted to or composition with the Chargor, the companies named in Schedule 1 or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any right, remedy or security against the Chargor, the companies named in Schedule 1 or any other person;
(c) any legal limitation, disability, incapacity or other circumstance relating to the Chargor, the companies named in Schedule 1 or any other person;
(d) any amendment or supplement to the Agreement or any other document or security; or
(e) the bankruptcy, dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Chargor, the companies named in Schedule 1 or any other person.
5.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Mortgage or by virtue of any relationship between or transaction involving the Chargor and the companies named in Schedule 1 (whether such relationship or transaction shall constitute the Chargor a creditor of the companies named in Schedule 1, a guarantor of the obligations of the companies named in Schedule 1 or in part subrogated to the rights of others against the companies named in Schedule 1 or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Mortgage):
(a) exercise any right of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other disposition is liable guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the companies named in Schedule 1 or any co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the companies named in Schedule 1 or any co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of the companies named in Schedule 1 or any co-surety in competition with the Chargee. The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to avoidance the Chargee any such payment (including an amount to any such set-off), distribution or repaymentbenefit of such security, indemnity or claim in fact received by it.
6.3. 5.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee or as otherwise provided in the Credit Agreement or the Security AgreementChargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount; provided that the Chargee shall be obliged to apply amounts standing to the credit of such account or accounts once the aggregate amount held by the Chargee in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations in full.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge Mortgage shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeMortgage;
6.1.4. (c) no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may may, subject to the terms of the Security Trust Deed, be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. (d) any waiver by the Chargee Mortgagee of any terms of this Charge Mortgage shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Mortgage between the Mortgagee and the Mortgagor shall be conditional upon no security or payment to the Mortgagee by the Mortgagor or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred the payment of which amounts shall, for the avoidance of doubt, form part of the Secured Obligations.
6.3 The rights of the Mortgagee under this Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including, and whether or not known to or discoverable by the Company, the Mortgagor, the Mortgagee or any arrangement other person:
(a) any time or waiver granted to or composition with the Company, the Mortgagor or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Mortgagor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Mortgagor or any other person;
(d) any variation to, or entry into, any Transaction Document or other document or security (including any amendment the effect of which is made on to change the faith nature or amount of any payment, security facilities made available thereunder or other disposition which is avoided to change the nature or must be repaid on bankruptcyextent of any obligations thereunder);
(e) the dissolution, liquidation, by virtue of Section 1001 amalgamation, reconstruction or reorganisation of the Taxes Consolidation Act 1997 Company, the Mortgagor or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede frustration of any obligations of the Company, the Mortgagor or compromise in good faith any claim that other person under any such payment, security Transaction Document or any other disposition is liable to avoidance document or repaymentsecurity.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee Mortgagee (acting on the instructions of the Secured Parties), the Mortgagor shall not by virtue of any payment made hereunder on account of the Secured Obligations or as otherwise provided in by virtue of any enforcement by the Credit Agreement Mortgagee of its rights under, or the Security Agreementsecurity constituted by, this Mortgage or any Transaction Document or by virtue of any relationship between or transaction involving the Mortgagor and/or the Company (whether such relationship or transaction shall constitute the Mortgagor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the Chargee subject matter of this Mortgage):
(a) exercise any rights of subrogation against the Company or any other person in relation to any rights, security or moneys held or received or receivable by the Mortgagee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Mortgagee. The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee (acting on the instructions of the Secured Parties), the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge Mortgage or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of the Secured Obligations or any other amount owing or payable under the Transaction Documents; provided that the Mortgagee shall be obliged to apply amounts standing to the credit of such amountaccount or accounts once the aggregate amount held by the Mortgagee in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations in full.
6.6 The Mortgagor shall not, without the prior written consent of the Mortgagee:
(a) cause or permit any rights attaching to the Mortgaged Property to be varied or abrogated;
(b) cause or permit any of the Mortgaged Property to be consolidated, sub-divided or converted or the capital of the Company to be re-organised, exchanged or repaid; or
(c) cause or permit anything to be done which may depreciate, jeopardise or otherwise prejudice the value of the security hereby given.
6.7 The Mortgagor hereby covenants that until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee (acting on the instructions of the Secured Parties), it will remain the legal and beneficial owner of the Mortgaged Property (subject to the Security Interests hereby created) and that it will not:
(a) create or suffer the creation of any Security Interests (other than those created by this Mortgage) or any other interest on or in respect of the whole or any part of the Mortgaged Property or any of its interest therein; or
(b) Transfer the Mortgaged Property without the prior consent in writing of the Mortgagee.
6.8 The Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Property and the Mortgagee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Mortgagor to perform its obligations in respect thereof.
6.9 Without the prior written consent of the Mortgagee, the Company shall not, and the Mortgagor shall ensure that it shall not use its voting rights to permit the Company to, amend its Memorandum and Articles in a way which could be expected to adversely affect the interests of the Mortgagee or any of the Secured Parties.
6.10 The Company shall not, and the Mortgagor shall procure the Company not to, until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Mortgagee:
(a) create or permit to subsist any Security Interest upon the whole or any part of its assets, except as permitted by the Transaction Documents;
(b) register any Transfer of the Mortgaged Shares to any person (except to the Mortgagee or its nominees pursuant to the provisions of this Mortgage);
(c) issue any share certificate or replacement share certificates in respect of any of the Mortgaged Shares;
(d) continue its existence under the laws of any jurisdiction other than the Cayman Islands;
(e) do anything which might prejudice its status as an exempted company;
(f) issue, allot or grant warrants or options with respect to any additional shares; or
(g) exercise any rights of forfeiture over any of the Mortgaged Shares, without the prior written consent of the Mortgagee.
6.11 The Company shall, and the Mortgagor shall procure the Company to, irrevocably waive, in favour of the Mortgagee:
(a) any lien; and
(b) any rights of forfeiture; which it may have over the Mortgaged Shares.
6.12 The Company shall, and the Mortgagor shall procure the Company to, (i) comply with the Memorandum and Articles and otherwise conduct its affairs in a way which does not prejudice the Mortgagee’s legal and economic interests in relation to the Mortgaged Property and (ii) irrevocably consent to any transfer of the Mortgaged Shares by the Mortgagee or its nominee to any other person pursuant to the exercise of the Mortgagee’s rights under this Mortgage.
6.13 The Mortgagor shall not, without the prior written consent of the Mortgagee, participate in any vote concerning a members’ liquidation or compromise in respect of the Company pursuant to section 116 of the Companies Law.
6.14 The Mortgagor hereby covenants that it will (to the extent required to do so under the Companies Law) provide to the Company all Required Particulars relating to it within the time period specified in the Companies Law.
Appears in 1 contract
Samples: Equitable Share Mortgage (Dai Kun)
Preservation of Security. 6.1. 5.1 It is hereby declared and agreed and declared that:
6.1.1. (a) the security created by the Mortgage and this Charge Deed (or either of them) shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge performance of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Security Documents;
6.1.3. (c) the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any of the other security Security Documents before enforcing the security created by the Mortgage and this ChargeDeed (or either of them);
6.1.4. (d) no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under the Mortgage and this Charge Deed (or either of them) shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, rights powers and remedies herein provided in this Deed are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. (e) any waiver by the Chargee Mortgagee of any terms of this Charge Deed or any consent given by the Mortgagee under this Deed shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 5.2 Any settlement or discharge under the Mortgage and this Deed (or either of them) between the Mortgagee and the Owner shall be conditional upon no security or payment to the Secured Creditors by any person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Owner on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
5.3 The rights of the Secured Creditors under the Mortgage and this Deed and the security thereby and hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part or any arrangement is made on the faith of any paymentpart, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation, by virtue of Section 1001 of the Taxes Consolidation Act 1997 or otherwise including without limitation, this Charge shall continue in force as if there had been no such discharge and whether or arrangement. The Chargee shall be entitled not known to concede or compromise in good faith discoverable by any claim that person:
(a) any such paymenttime or waiver granted to or composition with any person; or
(b) the taking, security variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any person; or
(c) any legal limitation, disability, incapacity or other disposition is liable circumstances relating to avoidance any person; or
(d) any amendment or repaymentsupplement to any of the Credit Documents or any other document or security; or
(e) the dissolution, amalgamation, reconstruction or reorganisation of any person; or
(f) the unenforceability, invalidity or frustration of any obligations of any person under any of the Credit Documents or any other document or security.
6.3. 5.4 Until the Secured Obligations have been satisfied unconditionally and irrevocably satisfied paid and discharged in full to the satisfaction of the Chargee Mortgagee, the Owner shall not by virtue of any payment made hereunder on account of the Obligations or as otherwise provided by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, the Mortgage and this Deed or by virtue of any relationship between or transaction involving any person in any way whatsoever and whether or not such relation or transaction shall be related to, or in connection with, the subject matter of the Credit Agreement or the Security Agreement, the Chargee Mortgage and/or this Deed):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Secured Creditors or any other person; or
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guaranty, security or agreement; or
(c) exercise any right of set-off or counterclaim against any person or any co-surety; or
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from any person or any co-surety; or
(e) unless so directed by the Mortgagee (when the Owner will prove in accordance with such directions), claim as a creditor of any person or any co-surety in competition with the Secured Creditors. The Owner shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
5.5 Until the Obligations have been unconditionally and irrevocably performed in full to the satisfaction of the Mortgagee, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under the Mortgage and this Charge Deed (or either of them) or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations Indebtedness without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
5.6 The Owner unconditionally and irrevocably agrees that if any sums hereby secured are not recoverable on the basis of a guaranty (whether by reason of legal limitation, illegality, disability or incapacity on or of any person or by reason of any other fact or circumstance, and whether or not known to or discoverable by any person), then the Owner will, as a separate and independent stipulation and as a primary obligor, pay to the Secured Creditors on demand an amount or amounts equal to the amount or amounts which the Owner would have been liable to pay but for such irrecoverability and will on demand indemnify the Mortgagee against any loss or liability suffered or incurred by the Secured Creditors as a result of such irrecoverability.
Appears in 1 contract
Preservation of Security. 6.1. 7.1 It is hereby agreed and declared that:
6.1.1. (a) the security Security Interest created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. (b) the security Security Interest so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with any other security (or any right of set-off) which the Chargee may hold at any time for the Secured Obligations or affected by any of themthe other Security Documents;
6.1.3. (c) the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 7.2 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge is made such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any arrangement is made on other person:
(a) any time or waiver granted to or composition with the faith Company or any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against the Company or any other person;
(c) any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to the Company or must be repaid on bankruptcyany other person;
(d) any amendment or supplement to the Loan Agreement, the other Security Documents or any other document or security;
(e) the dissolution, liquidation, by virtue of Section 1001 merger, consolidation, reconstruction or reorganisation of the Taxes Consolidation Act 1997 Company or otherwise without limitationany other person; or
(f) the unenforceability, this Charge shall continue in force as if there had been no such discharge invalidity or arrangement. The Chargee shall be entitled to concede frustration of any obligations of the Company or compromise in good faith any claim that other person under the Loan Agreement, the other Security Documents or any such payment, security other document or other disposition is liable to avoidance or repaymentsecurity.
6.3. 7.3 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
(a) exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co- surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as otherwise provided a creditor of the Company or any such co-surety in competition with the Credit Agreement Chargee.
7.4 The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Security AgreementChargee any such payment (including an amount equal to any such set-off), distribution (other than such dividend or distribution payments described in Paragraph 6.1(b)) or benefit of such security, indemnity or claim in fact received by it.
7.5 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount, provided that the Chargee shall be obliged to apply amounts standing to the credit of such account or accounts once the aggregate amount held by the Chargee in any such account or accounts is sufficient to satisfy the outstanding amount of the Secured Obligations in full.
Appears in 1 contract
Samples: Charge Over Shares (Golden Meditech Stem Cells (BVI) Co LTD)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge Legal Mortgage of IPCo Shares shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (present or future contractual or other right or remedy or any right of set-off) which guarantee or other Security Interest held by or available to the Chargee may hold at any time Mortgagee providing collateral for the Secured Obligations or any of themObligations;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeLegal Mortgage of IPCo Shares;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Legal Mortgage of IPCo Shares shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law Laws and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge Legal Mortgage of IPCo Shares shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Legal Mortgage of IPCo Shares among the Mortgagee and the Mortgagors shall be subject to the condition subsequent that no security or payment to the Mortgagee by IPCo, HoldCo, either Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagors on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this Legal Mortgage of IPCo Shares and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by IPCo, either Mortgagor, the Mortgagee or any arrangement is made on other Person:
6.3.1 any time or waiver granted to or composition with either Mortgagor or any other Person under any other Transaction Document or otherwise ;
6.3.2 the faith taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against either Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to either Mortgagor or must be repaid on bankruptcyany other Person under any other Transaction Document or otherwise;
6.3.4 any amendment or supplement to any Transaction Document or any other document or security;
6.3.5 the dissolution, liquidation, by virtue amalgamation, merger, consolidation, reconstruction or reorganization of Section 1001 any Person; or
6.3.6 the unenforceability, invalidity or frustration of the Taxes Consolidation Act 1997 any obligations of either Mortgagor or otherwise without limitation, this Charge shall continue any other Person under any Transaction Document or any other document or security in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentjurisdiction.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full full, neither Mortgagor shall by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Legal Mortgage of IPCo Shares:
6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against any such co-surety;
6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the applicable Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee. Each Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the satisfaction Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementoccurrence of an Event of Default, the Chargee Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations Legal Mortgage of IPCo Shares without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountSecured Obligations.
Appears in 1 contract
Samples: Framework Agreement (Yahoo Inc)
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. 6.1.1 the security created by this Charge Legal Mortgage of IPCo Shares shall be held by the Chargee Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
6.1.2. 6.1.2 the security so created by this Charge is shall be in addition to and independent of and shall not prejudice in any way be prejudiced or merge with affected by any other security (present or future contractual or other right or remedy or any right of set-off) which guarantee or other Security Interest held by or available to the Chargee may hold at any time Mortgagee providing collateral for the Secured Obligations or any of themObligations;
6.1.3. 6.1.3 the Chargee Mortgagee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this ChargeLegal Mortgage of IPCo Shares;
6.1.4. 6.1.4 no delay or omission on the part of the Chargee Mortgagee in exercising any right, power or remedy under this Charge Legal Mortgage of IPCo Shares shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law Laws and may be exercised from time to time and as often as the Chargee Mortgagee may deem expedient; and
6.1.5. 6.1.5 any waiver by the Chargee Mortgagee of any terms of this Charge Legal Mortgage of IPCo Shares shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where 6.2 Any settlement or discharge under this Legal Mortgage of IPCo Shares among the Mortgagee and the Mortgagors shall be subject to the condition subsequent that no security or payment to the Mortgagee by IPCo, HoldCo, either Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagors on demand the value of such security or the amount of any such payment as if such settlement or discharge is made had not occurred.
6.3 The rights of the Mortgagee under this Legal Mortgage of IPCo Shares and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part part, including without limitation, and whether or not known to or discoverable by IPCo, either Mortgagor, the Mortgagee or any arrangement is made on other Person:
6.3.1 any time or waiver granted to or composition with either Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.2 the faith taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any paymentrights, security remedies or securities against either Mortgagor or any other Person under any other Transaction Document or otherwise;
6.3.3 any legal limitation, disability, incapacity or other disposition which is avoided circumstances relating to either Mortgagor or must be repaid on bankruptcyany other Person under any other Transaction Document or otherwise;
6.3.4 any amendment or supplement to any Transaction Document or any other document or security;
6.3.5 the dissolution, liquidation, by virtue amalgamation, merger, consolidation, reconstruction or reorganization of Section 1001 any Person; or
6.3.6 the unenforceability, invalidity or frustration of the Taxes Consolidation Act 1997 any obligations of either Mortgagor or otherwise without limitation, this Charge shall continue any other Person under any Transaction Document or any other document or security in force as if there had been no such discharge or arrangement. The Chargee shall be entitled to concede or compromise in good faith any claim that any such payment, security or other disposition is liable to avoidance or repaymentjurisdiction.
6.3. 6.4 Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full full, neither Mortgagor shall by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Legal Mortgage of IPCo Shares:
6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;
6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
6.4.3 exercise any right of set-off or counterclaim against any such co-surety;
6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or
6.4.5 unless so directed by the Mortgagee (when the applicable Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee. Each Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the satisfaction Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
6.5 Until the Chargee or as otherwise provided in the Credit Agreement or the Security Agreementoccurrence of an Event of Default, the Chargee Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee Mortgagee for as long as the Chargee it may think fit, any moneys received received, recovered or realised realized under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations Legal Mortgage of IPCo Shares without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amountSecured Obligations.
Appears in 1 contract
Preservation of Security. 6.1. 6.1 It is hereby agreed and declared that:
6.1.1. (a) the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured ObligationsObligations (unless the only remaining obligations are unmatured contingent obligations);
6.1.2. the security created by this Charge is in addition to and independent of and shall not prejudice or merge with any other security (or any right of set-offb) which the Chargee may hold at any time for the Secured Obligations or any of them;
6.1.3. the Chargee shall not be bound to seek to recover any amounts due from the Chargor or any other person, exercise any rights against the Chargor or any other person or enforce any other security before enforcing the security created by this Charge;
6.1.4. (c) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
6.1.5. (d) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only against the Chargee and for the purpose and upon the terms for which it is given.
6.2. Where any 6.2 Any settlement or discharge is made in whole under this Charge between the Chargee and the Chargor shall be conditional upon no security or in part payment to the Chargee by the Company or the Chargor or any arrangement is made on the faith of any payment, security or other disposition which is person being avoided or must set aside or ordered to be repaid on bankruptcy, liquidation, refunded or reduced by virtue of Section 1001 of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the Taxes Consolidation Act 1997 or otherwise without limitation, this Charge shall continue time being in force as and, if there had been no such discharge or arrangement. The condition is not satisfied, the Chargee shall be entitled to concede recover from the Chargor on demand the value of such security or compromise in good faith any claim that the amount of any such paymentpayment as if such settlement or discharge had not occurred.
6.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
(a) any time or waiver granted to or composition with the Company, the Chargor or any other person;
(b) the taking, variation, compromise, renewal or release (other than a release under Clause 9) of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company, the Chargor or any other person;
(c) any legal limitation, disability, incapacity or other circumstances relating to the Company, the Chargor or any other person;
(d) any amendment or supplement to the Loan Agreement or any other document or security;
(e) the dissolution, liquidation, amalgamation, reconstruction or reorganisation of the Company, the Chargor or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of the Company, the Chargor or any other person under the Loan Agreement or any other document or security.
6.4 Until the Security Period shall have terminated, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or in part subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge), except as permitted under the Loan Agreement and the Intercompany Subordination Agreement:
(a) exercise any rights of subrogation in relation to any rights, security or other disposition is liable to avoidance moneys held or repayment.
6.3. Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of received or receivable by the Chargee or any person;
(b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
(c) exercise any right of set-off or counterclaim against the Company or any such co-surety;
(d) receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
(e) unless so directed by the Chargee (in which case the Chargor will prove in accordance with such directions), claim as otherwise provided a creditor of the Company or any such co-surety in competition with the Credit Agreement Chargee. The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any payment (including an amount to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it in violation of this Clause 6.4.
6.5 Until the Security AgreementPeriod shall have terminated, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as the Chargee it may think fit, any moneys received recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount; provided that the Chargee shall be obliged to apply amounts standing to the credit of such account or accounts once the aggregate amount held by the Chargee in any such account or accounts opened pursuant hereto is sufficient to satisfy the outstanding amount of the Secured Obligations (other than unmatured contingent obligations) in full.
Appears in 1 contract
Samples: Loan and Security Agreement (SMART Modular Technologies (DE), Inc.)
