Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULT, THEN, AND IN ANY SUCH EVENT, 1. The Secured Party, without obligation to do so and without releasing or waiving any of its rights, shall have the right, power, and authority, without notice, presentment or demand to declare the unpaid principal amount of the Note and any other indebtedness secured hereby, whether matured or not, together with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and 2. The Secured Party may, at its option, without notice and irrespective of whether declaration of default is required to be delivered to any party named in the Loan Documents or other instrument or obligations securing the Note or secured hereunder or whether remedies under other security instruments have been exercised, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available to the Secured Party under the Uniform Commercial code or other applicable laws. 3. Without limiting the generality of the foregoing, upon the occurrence of an Event of Default: a. The Secured Party may, at the Secured Party's option and at the Debtor's expense, either in the Secured Party's own right or in the name of the Debtor and in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had not been made: (1) demand, xxx for, collect, recover, receive and otherwise enforce payment of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and instructing all other parties liable to the Debtor in connection with the Collateral to make all payments then due or which may thereafter become due thereunder or thereby to the Secured Party, and the Debtor further agreeing that the receipt by the Secured Party of any such payments shall be a complete release and discharge of the obligor or obligors thereof to the extent of the payment or payments so made; (2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral; (3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral; (4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateral, and, to the extent permitted by law, the Secured Party may itself or by such officers or agents as it may appoint (A) manage or operate the Collateral or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase prices, and lease the Property or Personal Property, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management of the Property or Personal Property; and (5) xxx or otherwise collect and receive money. b. The Secured Party may foreclose this Security Agreement in the manner now or hereafter provided or permitted by law, including treatment of the Collateral as real property subject to judicial foreclosure pursuant to Chapter 667, Hawaii Revised Statutes, as amended, and shall have the immediate right to receivership on ex parte order and without bond pending foreclosure, and may sell, assign, transfer or otherwise dispose of the Collateral at public or private sale, in whole or in part, and the Secured Party may, in its own name or as the irrevocably appointed attorney-in-fact of the Debtor, effectually assign and transfer the Collateral, or any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power to substitute one or more persons or corporations with like power; and, if the Secured Party so instructs the Debtor, the Debtor shall assemble, without expense to the Secured Party, all of the Collateral at a convenient place on the island where the Property is located, and the Debtor shall ratify and confirm any such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure sale, assignment or transfer shall, to the extent permitted by law, be a perpetual bar, both at law and in equity, against the Debtor and all persons and entities lawfully claiming by or through or under the Debtor. Any such sale may be adjourned from time to time. Upon any sale, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any such sale may, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereon, in lieu of cash, up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon. c. In case of any Event of Default, neither the Debtor nor anyone claiming by, through or under the Debtor, to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any of the Collateral is situated in order to prevent or hinder the enforcement of this Security Agreement, or the absolute sale of the Collateral, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended to be created hereby marshalled upon any enforcement of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such sale first, to the costs and expenses of such sale and all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according to the terms hereof; next, to the payment of the unpaid principal of and interest on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiency. d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal of, and interest on, the Note and all fees, charges and other sums due under the Loan documents at or after the date therein expressed as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, to pay such amounts at the respective times and places therein expressed.
Appears in 1 contract
Samples: Security Agreement (Cyanotech Corp)
Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULTSubject to Section 3.7, THENupon the occurrence of any Event of Default and at any time thereafter so long as the same shall be continuing, AND IN ANY SUCH EVENT,
1. The Secured Party, without obligation to do so and without releasing or waiving any of its rights, shall have the right, power, and authority, without notice, presentment or demand to declare the unpaid principal amount of the Note and any other indebtedness secured hereby, whether matured or not, together with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and
2. The Secured Party Lessor may, at its option, without notice and irrespective of whether declaration of default is required declare this Equipment Operating Lease to be delivered to any party named in the Loan Documents or other instrument or obligations securing the Note or secured hereunder or whether remedies under other security instruments have been exercised, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available default by a written notice to the Secured Party under the Uniform Commercial code or other applicable laws.
3. Without limiting the generality of the foregoingLessee, PROVIDED that upon the occurrence of an Event of Default:
a. The Secured Party mayDefault described in paragraph (k) or (l) of Section 16, at this Equipment Operating Lease shall automatically be deemed to be in default without the Secured Party's option need for giving any notice; and at any time thereafter, so long as the Debtor's expenseLessee shall not have remedied all outstanding Events of Default, either in the Secured Party's own right Lessor may do one or in the name more of the Debtor and following as the Lessor in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had not been made:
(1) demand, xxx for, collect, recover, receive and otherwise enforce payment of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and instructing all other parties liable to the Debtor in connection with the Collateral to make all payments then due or which may thereafter become due thereunder or thereby to the Secured Party, and the Debtor further agreeing that the receipt by the Secured Party of any such payments its sole discretion shall be a complete release and discharge of the obligor or obligors thereof to the extent of the payment or payments so made;
(2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral;
(3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral;
(4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateral, andelect, to the extent permitted by, and subject to compliance with any mandatory requirements of, Applicable Law then in effect:
(a) proceed by lawappropriate court action or actions, either at law or in equity, to enforce performance by the Lessee of the applicable covenants and terms of this Equipment Operating Lease or to recover damages for breach thereof;
(b) by notice in writing to the Lessee, terminate this Equipment Operating Lease and the Lessee's Unit 1 Interest whereupon all right of the Lessee to the possession and use of the Equipment Interest under this Equipment Operating Lease shall absolutely cease and terminate but the Lessee shall remain liable as hereinafter provided; and thereupon, the Secured Party Lessor may itself or by such officers or agents as it may appoint (A) manage or operate demand that the Collateral or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase pricesLessee, and lease the Property or Personal PropertyLessee shall, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management upon written demand of the Property Lessor and at the Lessee's expense, forthwith return constructive possession of the Equipment Interest to the Lessor or Personal Property; and
(5) xxx or otherwise collect and receive money.
b. The Secured Party may foreclose this Security Agreement its order in the manner now or hereafter provided or permitted by lawand condition required by, including treatment and otherwise in accordance with all of the Collateral as real property subject provisions of Sections 5.2 and 5.3, except those provisions relating to judicial foreclosure pursuant to Chapter 667periods of notice; and the Lessor may thenceforth hold, Hawaii Revised Statutes, as amended, possess and shall have enjoy the immediate same free from any right to receivership on ex parte order and without bond pending foreclosure, and may sell, assign, transfer or otherwise dispose of the Collateral Lessee, or its successor or assigns, to use the Equipment Interest for any purpose whatever; (c) sell the Lessor's Unit 1 Interest or Clover Unit 1 at public or private sale, in whole or in part, and the Secured Party may, in its own name or as the irrevocably appointed attorney-in-fact Lessor may determine, free and clear of any rights of the Debtor, effectually assign Lessee and transfer the Collateral, or without any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power duty to substitute one or more persons or corporations with like power; and, if the Secured Party so instructs the Debtor, the Debtor shall assemble, without expense account to the Secured Party, all of the Collateral at a convenient place on the island where the Property is located, and the Debtor shall ratify and confirm any Lessee with respect to such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure sale, assignment or transfer shall, for the proceeds thereof (except to the extent permitted required by lawparagraph (e) below if the Lessor elects to exercise its rights under said paragraph and by Applicable Law), be a perpetual bar, both at law and in equity, against which event the Debtor and all persons and entities lawfully claiming by or through or under Lessee's obligation to pay Basic Rent hereunder due for any periods subsequent to the Debtor. Any date of such sale may be adjourned from time to time. Upon any sale, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any such sale may, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereon, in lieu of cash, up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon.
c. In case of any Event of Default, neither the Debtor nor anyone claiming by, through or under the Debtor, shall terminate (except to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any of the Collateral is situated in order to prevent or hinder the enforcement of this Security Agreement, or the absolute sale of the Collateral, or the final that Basic Rent and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended other Rent are to be created hereby marshalled upon any enforcement included in computations under paragraph (e) or (f) below if the Lessor elects to exercise its rights under either of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such sale first, to the costs and expenses of such sale and all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according to the terms hereof; next, to the payment of the unpaid principal of and interest on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiency.
d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal of, and interest on, the Note and all fees, charges and other sums due under the Loan documents at or after the date therein expressed as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, to pay such amounts at the respective times and places therein expressed.said paragraphs);
Appears in 1 contract
Samples: Equipment Operating Lease Agreement (Old Dominion Electric Cooperative)
Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULTWhenever any Event of Default shall occur, THEN, AND IN ANY SUCH EVENT,
1. The Secured Party, without obligation to do so and without releasing or waiving any of its rights, shall have the right, power, and authority, without notice, presentment or demand to declare the unpaid principal amount of the Note and any other indebtedness secured hereby, whether matured or not, together with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and
2. The Secured Party Authority may, at its option, without if such is still continuing after the expiration of all applicable periods provided herein to the Concessionaire to cure, terminate this Agreement by giving written notice thereof to Concessionaire, and irrespective immediately, or at any time thereafter, take full possession of whether declaration all Foodservice areas, Leasehold Improvements, Equipment and Smallwares, and all persons and property occupying or using any part of default is required the Facility under this Agreement, either by summary proceedings or by any suitable action or proceedings at law or otherwise. No such removal or other exercise of dominion by the Authority shall be deemed to be delivered or to constitute a conversion, Concessionaire hereby consenting after any party named Event of Default to the aforesaid exercise of dominion over the Authority’s property in and at the Facilities. All claims for damages by reason of such re- entry and/or repossession are hereby waived. Concessionaire agrees that any re-entry by the Authority may be without the necessity for any legal proceedings, and the Authority shall not be liable in trespass or otherwise. Notwithstanding anything to the contrary contained in this Agreement, and without waiving any of the Authority’s other rights under this Agreement on account of an Event of Default, the Authority shall have the right of access to and use of the Foodservice areas, Leasehold Improvements, Equipment and Smallwares to provide to patrons of the Facilities the services to be provided by Concessionaire under this Agreement under circumstances in which immediately prior to an event (previously scheduled and actually held) in the Loan Documents Facilities either (i) Concessionaire acting through its authorized representative has informed or informs the Authority that it is unable or unwilling to provide the services required by this Agreement for such event or (ii) without the Authority being informed of such inability or unwillingness in accordance with (i) above, the Authority reasonably believes, immediately prior to such event, that Concessionaire will not or cannot provide any such services to the Facilities for such event, provided the Authority so notifies Concessionaire of the Authority’s intentions. The duties, covenants and agreements of Concessionaire set forth herein may be enforced by injunctive relief or other instrument equitable or obligations securing legal remedy without the Note or secured hereunder or whether necessity of proving the inadequacy of legal remedies, without the posting of bond and without proving that the Authority would suffer irreparable harm as a result of a violation of such duties, covenants and agreements. All remedies under other security instruments have been exercised, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available granted to the Secured Party under Authority herein are cumulative and non-exclusive. Furthermore, the Uniform Commercial code or other applicable laws.
3. Without limiting the generality Authority shall, without waiving any of the foregoingAuthority’s other rights under this Agreement on account of an Event of Default, upon the occurrence of an Event of Default:
a. The Secured Party mayDefault and after notice to Concessionaire, at have the Secured Party's option and at the Debtor's expenseright, either in the Secured Party's own right or in the name of the Debtor and in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had but shall not been made:
(1) demand, xxx for, collect, recover, receive and otherwise enforce payment of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and instructing all other parties liable to the Debtor in connection with the Collateral to make all payments then due or which may thereafter become due thereunder or thereby to the Secured Partybe obligated, and the Debtor further agreeing that the receipt by the Secured Party of any without waiving such payments shall be a complete release and discharge of the obligor or obligors thereof to the extent of the payment or payments so made;
(2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral;
(3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral;
(4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateral, and, to the extent permitted by law, the Secured Party may itself or by such officers or agents as it may appoint (A) manage or operate the Collateral or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase prices, and lease the Property or Personal Property, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management of the Property or Personal Property; and
(5) xxx or otherwise collect and receive money.
b. The Secured Party may foreclose this Security Agreement in the manner now or hereafter provided or permitted by law, including treatment of the Collateral as real property subject to judicial foreclosure pursuant to Chapter 667, Hawaii Revised Statutes, as amended, and shall have the immediate right to receivership on ex parte order and without bond pending foreclosure, and may sell, assign, transfer or otherwise dispose of the Collateral at public or private sale, in whole or in part, and the Secured Party may, in its own name or as the irrevocably appointed attorney-in-fact of the Debtor, effectually assign and transfer the Collateral, or any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power to substitute one or more persons or corporations with like power; and, if the Secured Party so instructs the Debtor, the Debtor shall assemble, without expense to the Secured Party, all of the Collateral at a convenient place on the island where the Property is located, and the Debtor shall ratify and confirm any such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure sale, assignment or transfer shall, to the extent permitted by law, be a perpetual bar, both at law and in equity, against the Debtor and all persons and entities lawfully claiming by or through or under the Debtor. Any such sale may be adjourned from time to time. Upon any sale, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any such sale may, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereon, in lieu of cash, up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon.
c. In case of any Event of Default, neither the Debtor nor anyone claiming by, through or under the Debtor, to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage such reasonable action as may be necessary to remedy such Event of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any of the Collateral is situated in order to prevent or hinder the enforcement of this Security Agreement, or the absolute sale of the Collateral, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended to be created hereby marshalled upon any enforcement of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such sale first, to the costs and expenses of such sale and all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according to the terms hereof; next, to the payment of the unpaid principal of and interest Default on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiency.
d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal behalf of, and interest onfor the account of, Concessionaire, and upon the Note Authority taking such remedial action Concessionaire shall be obligated to and all fees, charges and other sums due under the Loan documents at or after the date therein expressed as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, hereby agrees to pay the Authority, upon demand, all commercially reasonable costs, expenses, and disbursements incurred by the Authority in taking such amounts at the respective times and places therein expressedremedial action.
Appears in 1 contract
Samples: Food Beverage Merchandise Concessions and Catering Agreement
Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULT, THEN, AND IN ANY SUCH EVENT,
1. The Secured Party, without obligation Subject to do so the penultimate sentence of Section 3.7 with respect to the Events of Default set forth in Section 16(a) and without releasing 16(b) or waiving any an Event of its rights, shall have the right, power, and authority, without notice, presentment Default set forth in Section 16(k) in consequence of an Event of Default set forth in Section 16(a) or demand to declare the unpaid principal amount 16(b) of the Note Operating Foundation Agreement, upon the occurrence of any Event of Default and at any other indebtedness secured herebytime thereafter so long as the same shall be continuing, whether matured or not, together with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and
2. The Secured Party Facility Owner may, at its option, without notice and irrespective of whether declaration of default is required declare this Operating Equipment Agreement to be delivered in default by a written notice to any party named in the Loan Documents or other instrument or obligations securing the Note or secured hereunder or whether remedies under other security instruments have been exercised, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available to the Secured Party under the Uniform Commercial code or other applicable laws.
3. Without limiting the generality of the foregoing, Old Dominion; PROVIDED that upon the occurrence of an Event of Default:
a. The Secured Party mayDefault described in paragraph (k) or (l) of Section 16, at this Operating Equipment Agreement shall automatically be deemed to be in default without the Secured Party's option need for giving any notice; and at any time thereafter, so long as Old Dominion shall not have remedied all outstanding Events of Default, the Debtor's expense, either in the Secured Party's own right Facility Owner may do one or in the name more of the Debtor and following as the Facility Owner in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had not been made:
(1) demand, xxx for, collect, recover, receive and otherwise enforce payment of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and instructing all other parties liable to the Debtor in connection with the Collateral to make all payments then due or which may thereafter become due thereunder or thereby to the Secured Party, and the Debtor further agreeing that the receipt by the Secured Party of any such payments its sole discretion shall be a complete release and discharge of the obligor or obligors thereof to the extent of the payment or payments so made;
(2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral;
(3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral;
(4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateral, andelect, to the extent permitted by, and subject to compliance with any mandatory requirements of, Applicable Law then in effect:
(a) proceed by lawappropriate court action or actions, either at law or in equity, to enforce performance by Old Dominion of the applicable covenants and terms of this Operating Equipment Agreement or to recover damages for breach thereof;
(b) by notice in writing to Old Dominion, terminate this Operating Equipment Agreement and Old Dominion's Unit 2 Interest whereupon all right of Old Dominion to the possession and use of the Equipment Interest under this Operating Equipment Agreement shall absolutely cease and terminate but Old Dominion shall remain liable as hereinafter provided; and thereupon, the Secured Party Facility Owner may itself or by such officers or agents as it may appoint (A) manage or operate the Collateral or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase pricesdemand that Old Dominion, and lease the Property or Personal PropertyOld Dominion shall, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management upon written demand of the Property Facility Owner and at Old Dominion's expense, forthwith return constructive possession of the Equipment Interest to the Facility Owner or Personal Property; and
(5) xxx or otherwise collect and receive money.
b. The Secured Party may foreclose this Security Agreement its order in the manner now or hereafter provided or permitted by lawand condition required by, including treatment and otherwise in accordance with all of the Collateral as real property subject provisions of Sections 5.2 and 5.3, except those provisions relating to judicial foreclosure pursuant periods of notice; and the Facility Owner may thenceforth hold, possess and enjoy the same free from any right of Old Dominion, or its successor or assigns, to Chapter 667, Hawaii Revised Statutes, as amended, and shall have use the immediate right to receivership on ex parte order and without bond pending foreclosure, and may sell, assign, transfer or otherwise dispose of Equipment Interest for any purpose whatever;
(c) sell the Collateral Facility Owner's Unit 2 Interest at public or private sale, as the Facility Owner may determine, free and clear of any rights of Old Dominion under this Operating Equipment Agreement and without any duty to account to Old Dominion with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (e) below if the Facility Owner elects to exercise its rights under said paragraph and by Applicable Law), in whole which event Old Dominion's obligation to pay Basic Payment hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Payments and other Equipment Payments are to be included in computations under paragraph (e) or (f) below if the Facility Owner elects to exercise its rights under either of said paragraphs);
(d) hold, keep idle or lease to others the Facility Owner's Unit 2 Interest as the Facility Owner in partits sole discretion may determine, free and clear of any rights of Old Dominion under this Operating Equipment Agreement and without any duty to account to Old Dominion with respect to such action or inaction or for any proceeds with respect thereto, except that Old Dominion's obligation to pay Basic Payment with respect to the Equipment Interest due for any periods subsequent to the date upon which Old Dominion shall have been deprived of possession and use of the Equipment Interest pursuant to this Section 17 shall be reduced by the net proceeds, if any, received by the Facility Owner from conveying the Facility Owner's Unit 2 Interest (and allocable to the Equipment Interest in accordance with the definition of Fair Market Sales Value) to any Person other than Old Dominion;
(e) whether or not the Facility Owner shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Facility Owner's Unit 2 Interest, the Facility Owner, by written notice to Old Dominion specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that Old Dominion pay to the Facility Owner, and Old Dominion shall pay to the Secured Party mayFacility Owner, on the Termination Date specified in its own name or as the irrevocably appointed attorney-in-fact of the Debtorsuch notice, effectually assign and transfer the Collateral, or any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power to substitute one or more persons or corporations with like power; unpaid Basic Payment due before such Termination Date and, if such Termination Date shall be a Payment Date, any Basic Payment (to the Secured Party so instructs extent payable in arrears) due and payable on such Payment Date, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the DebtorBasic Payment due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the Termination Value computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Facility Owner's Unit 2 Interest allocable to the Equipment Interest in accordance with the definition of Fair Market Sales Value as of the Termination Date specified in such notice; or (ii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice (and, upon payment of such Termination Value by Old Dominion pursuant to this clause (ii) and all other Equipment Payments then due and payable by Old Dominion, the Debtor shall assembleFacility Owner will forthwith transfer the Facility Owner's Unit 2 Interest to Old Dominion in accordance with this Section 17.1(e),
Section 17.1 (e) of the Operating Foundation Agreement, Section 10 of the Ground Lease and Sublease and Section 10.1 of each of the Head Agreements on an "as is", "where is" and "with all faults" basis, without expense representation or warranty other than a warranty as to the Secured Partyabsence of Facility Owner's Liens and Owner Participant's Liens, all of its interest in the Collateral at a convenient place on Facility Owner's Unit 2 Interest and, assuming the island where Facility Owner and the Property is locatedOwner Participant are in compliance with all of their obligations under the Operative Documents, Old Dominion shall cause the Agent to discharge the Liens of the Loan Agreement and the Leasehold Mortgage and to execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases and all other documents or instructions necessary or desirable to effect the Debtor shall ratify foregoing, all in form and confirm any such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure sale, assignment or transfer shall, substance reasonably satisfactory to the extent permitted by law, be a perpetual bar, both Facility Owner and at law the cost and in equity, against expense of Old Dominion); and
(f) if the Debtor and all persons and entities lawfully claiming by or through or under Facility Owner shall have sold the Debtor. Any such sale may be adjourned from time Facility Owner's Unit 2 Interest pursuant to time. Upon any saleparagraph (c) above, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any such sale may, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereonFacility Owner, in lieu of cash, up exercising its rights under paragraph (e) above with respect to the amount Facility Owner's Unit 2 Interest may, if it shall so elect, demand that Old Dominion pay to the Facility Owner, and Old Dominion shall pay to the Facility Owner, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Payment due for any periods subsequent to the date of such sale), any unpaid Basic Payment due before the date of such sale and, if that date is a Payment Date, the Basic Payment due on that date (to the extent payable in arrears), or, if that date is not a Payment Date, the daily equivalent of Basic Payment for the period from the preceding Payment Date to the date of such sale (to the extent payable in arrears), plus the amount, if any, by which shallthe Termination Value computed as of the Payment Date next preceding the date of such sale or, upon distribution if such sale occurs on a Payment Date, then computed as of such Payment Date, exceeds the net proceeds of such sale, such sales proceeds apportioned between the Equipment Interest and the Foundation Interest in accordance with the definition of Fair Market Sales Value. In addition, Old Dominion shall be payable thereon.
c. In case liable, except as otherwise provided above, for any and all unpaid Equipment Payments due hereunder before or during the exercise of any of the foregoing remedies, and, on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Event of DefaultDefault or the exercise of the Facility Owner's remedies with respect thereto, neither including the Debtor nor anyone claiming by, through or under the Debtor, to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage repayment in full of any appraisement, valuation, stay, extension or redemption law now or hereafter costs and expenses necessary to be expended in force in any locality where any connection with the return of the Collateral is situated Equipment Interest in accordance with Sections 5.2 and 5.3 hereof, including, without limitation, any costs and expenses incurred by the Facility Owner, the Owner Participant, the Agent or any Lender in connection with retaking constructive possession of, or in repairing, the Equipment Interest in order to prevent or hinder the enforcement of this Security Agreement, or the absolute sale of the Collateral, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended cause it to be created hereby marshalled upon any enforcement of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such sale first, to the costs and expenses of such sale and compliance with all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made maintenance standards imposed by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according to the terms hereof; next, to the payment of the unpaid principal of and interest on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Operating Equipment Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiency.
d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal of, and interest on, the Note and all fees, charges and other sums due under the Loan documents at or after the date therein expressed as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, to pay such amounts at the respective times and places therein expressed.
Appears in 1 contract
Samples: Operating Equipment Agreement (Old Dominion Electric Cooperative)
Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULT(a) If an Event of Default shall have occurred and is continuing, THEN(i) NEC on behalf of the Pledgees shall have the right to receive any and all cash dividends paid in respect of any of the Pledged Stock and make application thereof to the Secured Obligations in such order as NEC may determine and (ii) any shares of the Pledged Stock may, AND IN ANY SUCH EVENT,
at NEC’s election, be registered in the name of NEC or its nominee, and NEC or its nominee, on behalf of the Pledgees, may thereafter exercise (1. The Secured Party) all voting, corporate and other rights pertaining to such shares of the Pledged Stock at any meeting of shareholders of Issuer or otherwise and (2) any and all rights of conversion, exchange, subscription and any other rights, privileges or options pertaining to such shares of the Pledged Stock as if it were the absolute owner thereof (including, without obligation limitation, the right to exchange at its discretion any and all of the Pledged Stock upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of Issuer, or upon the exercise by Pledgor or the Pledgees of any right, privilege or option pertaining to such shares of the Pledged Stock, and in connection therewith, the right to deposit and deliver any and all of the Pledged Stock with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as NEC on behalf of the Pledgees may determine), all without liability except to account for property actually received by it. However, no Pledgee shall have any duty to Pledgor to exercise any such right, privilege or option and shall not be responsible for any failure to do so and without releasing or waiving any delay in so doing.
(b) If an Event of its rights, Default shall have occurred, at the rightelection of NEC on behalf of Lender, power, and authority, without notice, presentment Lender may apply all or demand to declare the unpaid principal amount any part of Proceeds held in any Collateral Account in payment of the Note obligations of Pledgees under this Agreement and any other indebtedness secured herebythe Loan Agreement, whether matured or notas provided in Section 6(d) below.
(c) If an Event of Default shall have occurred, together with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and
2. The Secured Party NEC may, at its optionon behalf of Lender, without notice exercise, in addition to all other rights and irrespective of whether declaration of default is required to be delivered to remedies granted in this Agreement and in any party named in the Loan Documents or other instrument or obligations securing agreement securing, evidencing or relating to the Note or secured hereunder or whether remedies under other security instruments have been exercisedSecured Obligations, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available to the Secured Party under the Uniform Commercial code or other applicable laws.
3of Lender. Without limiting the generality of the foregoing, upon the occurrence NEC on behalf of an Event of Default:
a. The Secured Party mayLender, at the Secured Party's option and at the Debtor's expense, either in the Secured Party's own right or in the name of the Debtor and in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had not been made:
(1) without demand, xxx forpresentment, protest, advertisement or notice of any kind (except any notice required by law) to or upon Pledgor or any other Person, may in such circumstances collect, recoverreceive, receive appropriate and otherwise enforce payment realize upon all or any of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and/or may sell, assign, give option or options to purchase or otherwise dispose of and instructing deliver all other parties liable to the Debtor in connection with or any of the Collateral (or contract to make all payments then due do any of the foregoing), in one or which more parcels at public or private sale or sales, in the over-the-ounter market, at any exchange, broker’s board or office of NEC or elsewhere upon such terms and conditions as it may thereafter become due thereunder deem advisable and at such prices as it may deem best, for cash or thereby to the Secured Party, and the Debtor further agreeing that the receipt by the Secured Party on credit or for future delivery without assumption of any credit risk. NEC shall have the right upon any such payments shall be a complete release and discharge of the obligor public sale or obligors thereof to the extent of the payment or payments so made;
(2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral;
(3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral;
(4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateralsales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the Secured Party may itself or by such officers or agents as it may appoint (A) manage or operate the Collateral whole or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase prices, and lease the Property or Personal Property, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management of the Property or Personal Property; and
(5) xxx or otherwise collect and receive money.
b. The Secured Party may foreclose this Security Agreement in the manner now or hereafter provided or permitted by law, including treatment of the Collateral as real property subject so sold, free of any right or equity of redemption in Pledgor, which right or equity is hereby waived or released. Pledgor recognizes that Lender may be unable to judicial foreclosure pursuant to Chapter 667effect a public sale of any or all of the Pledged Stock, Hawaii Revised Statutes, as amended, and shall have the immediate right to receivership on ex parte order and without bond pending foreclosureby reason of certain prohibitions contained in applicable securities laws or otherwise, and may sell, assign, transfer or otherwise dispose of the Collateral at public or private sale, in whole or in part, and the Secured Party may, in its own name or as the irrevocably appointed attorney-in-fact of the Debtor, effectually assign and transfer the Collateral, or any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power be compelled to substitute resort to one or more persons or corporations with like power; and, if the Secured Party so instructs the Debtor, the Debtor shall assemble, without expense private sales thereof to the Secured Party, all a limited group of the Collateral at a convenient place on the island where the Property is located, and the Debtor shall ratify and confirm any such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure sale, assignment or transfer shall, to the extent permitted by law, be a perpetual bar, both at law and in equity, against the Debtor and all persons and entities lawfully claiming by or through or under the Debtor. Any such sale may be adjourned from time to time. Upon any sale, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any such sale may, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereon, in lieu of cash, up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereonpurchasers.
c. In case of any Event of Default, neither the Debtor nor anyone claiming by, through or under the Debtor, to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any of the Collateral is situated in order to prevent or hinder the enforcement of this Security Agreement, or the absolute sale of the Collateral, or the final (d) The Proceeds and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended to be created hereby marshalled upon any enforcement of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such collection, recovery, receipt, appropriation, realization or sale first, to the costs and expenses of such sale and all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made of the Collateral by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according NEC pursuant to the terms hereof; next, to the payment hereof after an Event of the unpaid principal of and interest on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, Default shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiency.
d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal of, and interest on, the Note and all fees, charges and other sums due under the Loan documents at or after the date therein expressed applied as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, to pay such amounts at the respective times and places therein expressed.follows:
Appears in 1 contract
Remedies for Event of Default. UPON THE OCCURRENCE OF ANY ONE OR MORE OF EVENTS OF DEFAULT, THEN, AND IN ANY SUCH EVENT,
1. The Secured Party, without obligation Subject to do so and without releasing or waiving any of its rights, shall have the right, power, and authority, without notice, presentment or demand to declare the unpaid principal amount of the Note and any other indebtedness secured hereby, whether matured or not, together Section 3.7 with any interest thereon accrued and unpaid, to be immediately due and payable, and such indebtedness and interest shall thereupon become and be immediately due and payable, and shall bear interest until fully paid at the rate specified in the Note to be paid in the event of default; and
2. The Secured Party may, at its option, without notice and irrespective of whether declaration of default is required to be delivered to any party named in the Loan Documents or other instrument or obligations securing the Note or secured hereunder or whether remedies under other security instruments have been exercised, exercise all rights and remedies contained in the Loan Documents, including this Security Agreement, or any other security instruments and obligations, and shall have all rights and remedies available respect to the Secured Party under the Uniform Commercial code or other applicable laws.
3. Without limiting the generality Events of the foregoingDefault set forth in clauses (a) and (b) of Section 16, upon the occurrence of an any Event of Default:
a. The Secured Party may, at the Secured Party's option Default and at any time thereafter so long as the Debtor's expensesame shall be continuing, either this Facility Lease shall automatically be deemed to be in default without the Secured Party's own right need for giving any notice (the giving of which is waived to the fullest extent permitted by Applicable Law); and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Events of Default, the Facility Lessor may do one or in the name more of the Debtor and following as the Facility Lessor in the same manner and to the same extent that the Debtor might reasonably so act if this Security Agreement had not been made:
(1) demand, xxx for, collect, recover, receive and otherwise enforce payment of all proceeds and other sums due and payable from the Collateral, the Debtor hereby requesting and instructing all other parties liable to the Debtor in connection with the Collateral to make all payments then due or which may thereafter become due thereunder or thereby to the Secured Party, and the Debtor further agreeing that the receipt by the Secured Party of any such payments its sole discretion shall be a complete release and discharge of the obligor or obligors thereof to the extent of the payment or payments so made;
(2) to exercise all the rights, remedies and privileges of the Debtor arising from the Collateral, or any party thereof, including the compromising, waiving, excusing, or in any manner releasing or discharging of any obligation of any party to or arising from the Collateral;
(3) take possession of the books, papers, and accounts of the Debtor, wherever located, relating to the Collateral;
(4) receive, and the Debtor will forthwith surrender to the Secured Party, the possession of the Collateral, andelect, to the extent permitted by, and subject to compliance with any mandatory requirements of, Applicable Law then in effect:
(a) proceed by lawappropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee, at the Facility Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Lease, provided, however, that the liquidated damages amount set forth in paragraphs (e) and (f) below shall be the sole and exclusive monetary damages remedy available to the Facility Lessor for an Event of Default;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease and the Facility Lessee's Rocky Mountain Interest whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Secured Party Facility Lessor may itself or by such officers or agents as it may appoint (A) manage or operate demand that the Collateral or any part thereof, (B) exclude the Debtor, its agents and servants therefrom, (C) fix or modify purchase pricesFacility Lessee, and lease the Property or Personal PropertyFacility Lessee shall, or any part thereof, and (D) do all acts, including the making of contracts, which the Secured Party deems necessary for the care or management upon written demand of the Property or Personal Property; and
(5) xxx or otherwise collect Facility Lessor and receive money.
b. The Secured Party may foreclose this Security Agreement at the Facility Lessee's expense, forthwith return possession of the Undivided Interest to the Facility Lessor in the manner now or hereafter provided or permitted by lawand condition required by, including treatment and otherwise in accordance with all of the Collateral as real property subject provisions of Section 5, except those provisions relating to judicial foreclosure pursuant to Chapter 667periods of notice; and the Facility Lessor may thenceforth hold, Hawaii Revised Statutes, as amended, possess and shall have enjoy the immediate same free from any right to receivership on ex parte order and without bond pending foreclosure, and may sell, assign, transfer or otherwise dispose of the Collateral Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Facility Lessor's Rocky Mountain Interest at public or private sale, as the Facility Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Facility Lessor elects to exercise its rights under said paragraph and by Applicable Law), in whole which event the Facility Lessee's obligation to pay Basic Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Rent is to be included in computations under paragraph (f) below if the Facility Lessor elects to exercise its rights under said paragraph); provided, however, that if the Facility Lessor shall have exercised its rights under this paragraph (c), the Facility Lessor may not exercise any remedy set forth in paragraph (e) of this Section 17.1;
(d) hold, keep idle or lease to others the Facility Lessor's Rocky Mountain Interest as the Facility Lessor in partits sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this Section 17 shall be reduced by the net proceeds, if any, received by the Facility Lessor from leasing the Facility Lessor's Rocky Mountain Interest to any Person other than the Facility Lessee;
(e) whether or not the Facility Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Facility Lessee's Rocky Mountain Interest, the Facility Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Facility Lessor, and the Secured Party mayFacility Lessee shall pay to the Facility Lessor, on the Termination Date specified in its own name or as the irrevocably appointed attorney-in-fact of the Debtorsuch notice, effectually assign and transfer the Collateral, or any part thereof, absolutely, and execute and deliver all necessary assignments, deeds, conveyances, bills of sale and other instruments with power to substitute one or more persons or corporations with like power; unpaid Basic Rent due before such Termination Date and, if such Termination Date shall be a Rent Payment Date, any Basic Rent (to the Secured Party so instructs extent payable in arrears) due and payable on such Rent Payment Date, any Supplemental Rent due and payable as of the Debtorpayment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the Termination Value computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Facility Lessor's Rocky Mountain Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice and, upon payment of such Termination Value by the Facility Lessee pursuant to this clause (ii) and all other Rent then due and payable by the Facility Lessee, the Debtor shall assembleFacility Lessor will forthwith transfer to the Facility Lessee in accordance with this Section 17.1(e), Section 6 of the Ground Sublease and Section 9 of the Head Lease on an "as is", "where is" and "with all faults" basis, without expense representation or warranty other than a warranty as to the Secured Partyabsence of Facility Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant's Liens, all of its interest in the Collateral Facility Lessor's Rocky Mountain Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Facility Lessor and at a convenient place on the island where cost and expense of the Property is locatedFacility Lessee, and upon payment of such amounts under either clauses (i) and (ii) of this paragraph (e), this Facility Lease, and the Debtor Facility Lessee's obligation to pay Basic Rent hereunder due for any periods subsequent to the date of such payment shall ratify terminate;
(f) if the Facility Lessor shall have sold the Facility Lessor's Rocky Mountain Interest pursuant to paragraph (c) above, the Facility Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Facility Lessor, and confirm the Facility Lessee shall pay to the Facility Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Rent due for any periods subsequent to the date of such sale), an amount equal to (A) any unpaid Basic Rent due before the date of such sale or transfer by delivering all proper instruments to such persons or corporations as may be designated in any such request. Any such foreclosure saleand, assignment or transfer shall(B)(i) if that date is a Rent Payment Date, the Basic Rent due on that date (to the extent permitted payable in arrears), or, (ii) if that date is not a Rent Payment Date or a Termination Date, the daily equivalent of Basic Rent (to the extent payable in arrears) for the period from the preceding Termination Date to the date of such sale, plus (C) the amount, if any, by law, be a perpetual bar, both at law and in equity, against which the Debtor and all persons and entities lawfully claiming by or through or under Termination Value computed as of the Debtor. Any Termination Date next preceding the date of such sale may be adjourned from time to time. Upon any saleor, the Secured Party may bid for and purchase the Collateral, or any part thereof, and upon compliance with the terms of sale, may hold, retain and possess and dispose of the Collateral, in its absolute right without further accountability, and any purchaser, including the Secured Party, at any if such sale mayoccurs on a Rent Payment Date or a Termination Date then computed as of such date, if permitted by law, after allowing for the proportion of the total purchase price required to be paid in cash for the costs and expenses of the sale, commissioner's compensation and other charges, in paying purchase money, turn in the Note, including interest and charges thereon, in lieu of cash, up to the amount which shall, upon distribution of exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Rent for any periods subsequent to the date of such payment shall terminate; or
(g) the Facility Lessor may draw upon, or foreclose on, the Qualifying Equity Funding Agreement, and realize upon any other credit support provided to the Facility Lessor for the benefit of the Owner Participant only by the Facility Lessee, including the Facility Sublease and the Qualifying Sublease Surety Bond, and the payment of the proceeds of the Qualifying Equity Funding Agreement shall reduce the Facility Lessee's obligation to pay Termination Value to the extent of any such proceeds received by the Facility Lessor. In addition, the Facility Lessee shall be payable thereon.
c. In case liable, except as otherwise provided above, for any and all unpaid Rent due hereunder before, during or after the exercise of any of the foregoing remedies (and for damages in an amount equal to such Rent which would otherwise have accrued after eviction of the Facility Lessee or other termination of the leasehold created hereby pursuant to or in the course of the Facility Lessor's exercise of such remedies), and, on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Event of DefaultDefault or the exercise of the Facility Lessor's remedies with respect thereto, neither including the Debtor nor anyone claiming by, through or under the Debtor, to the extent the Debtor may lawfully so agree, shall or will set up, claim or seek to take advantage repayment in full of any appraisement, valuation, stay, extension or redemption law now or hereafter costs and expenses necessary to be expended in force in any locality where any connection with the return of the Collateral is situated Undivided Interest in accordance with Section 5.2 hereof, including, without limitation, any costs and expenses incurred by the Trustees, the Owner Participant or the Lender in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to prevent or hinder the enforcement cause it to be in compliance with all maintenance standards imposed by this Facility Lease. The provisions of this Security Agreement, Section 17.1 shall survive the termination for any reason whatsoever of this Facility Lease and the termination or the absolute sale cancellation for any reason whatsoever of the Collateral, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat; and the Debtor Facility Lessee's leasehold estate in the Debtor's own right and for all who may claim under the Debtor, hereby waives, to the full extent that the Debtor may lawfully do so, the benefit of all such laws and any and all right to have the estates comprised in the security intended to be created hereby marshalled upon any enforcement of the lien hereof and agrees that the Secured Party or any court having jurisdiction to foreclose such lien may sell the Collateral in parts or as an entirety. The Secured Party may apply the proceeds of any such sale first, to the costs and expenses of such sale and all proceedings in connection therewith, including counsel fees; next, to the payment of any disbursements made by the Secured Party for taxes or assessments or other charges prior to the Security interest of this Security Agreement which the Secured Party shall deem it expedient to pay; next, to the repayment of any other disbursements made by the Secured Party according to the terms hereof; next, to the payment of the unpaid principal of and interest on the Note, and any other obligations of the Debtor under the Loan Documents; and the remainder, if any, shall be paid over to the Debtor. If such proceeds shall be insufficient to discharge the entire indebtedness owing by the Debtor under the Security Agreement, the Loan Documents, and any other instrument or obligation secured hereunder, the Secured Party may have any other legal recourse against the Debtor for the deficiencyUndivided Interest.
d. Nothing in this Security Agreement or the Note shall impair the right, which is unconditional and absolute, of the holder of the Note to enforce payment of the principal of, and interest on, the Note and all fees, charges and other sums due under the Loan documents at or after the date therein expressed as the date when the same shall become due, or the obligation of the Debtor secured hereunder, which is likewise unconditional and absolute, to pay such amounts at the respective times and places therein expressed.
Appears in 1 contract
