Remedies of Collateral Agent. If an Event of Default shall have occurred and is continuing, Collateral Agent may, at its option, and shall, as directed by the Required Lenders, with or without notice to any Loan Party, exercise any of the following remedies with respect to any or all Collateral, Specified Collateral and Loan Documents: (i) proceed at law or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral); (ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder; (iii) enter, occupy and use any premises, with or without judicial process, where all or any part of the Collateral, Specified Collateral or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and records relating thereto, or both, to remove all or any part of the Collateral or Specified Collateral or the books and records relating thereto, or both, and to operate or conduct sales of the Collateral or Specified Collateral, without any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy; (iv) use the Loan Parties’ premises for storage without rent or liability; (v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or to the most current addresses designated by the Loan Parties to the Lender in writing at least ten (10) calendar days before the time of the public sale or the time after which any other Disposition is to be made; (vi) at the Lender’s sole and reasonable discretion, apply from time to time, in whole or in part, any Mined Cryptocurrency, or any other Digital Asset included in the Collateral or in the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations; (vii) exercise any rights granted to Collateral Agent under any Acceptable Lien Waiver; (viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, the disposition of the amounts on deposit in any such account; (ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement; (x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and (xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii).
Appears in 1 contract
Samples: Master Equipment Finance Agreement (Greenidge Generation Holdings Inc.)
Remedies of Collateral Agent. If 49.1. After the occurrence of an Event of Default, Collateral Agent and the other Secured Creditors shall have no obligation to make further loans, extensions of credit or other financial accommodations to or on behalf of Obligor, anything in any other agreement to the contrary notwithstanding.
49.2. After the occurrence of an Event of Default, other than an Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement, Collateral Agent may declare by notice to Obligor, any and all Obligations to be immediately due and payable and in the case of any Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement all of the Obligations shall have occurred automatically be and is continuingbecome due and payable, in either case without presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligor, anything in any other agreement to the contrary notwithstanding.
49.3. After the occurrence of an Event of Default, Collateral Agent may, and at its option, and the direction of the Required Lenders shall, as directed by the Required Lenders, with or without notice to or demand (other than any Loan Partynotice required by law, exercise the giving of which is not waivable) upon Obligor (all of which are hereby waived by Obligor), without releasing Obligor from any obligation under this Agreement or any other instruments or agreements with Collateral Agent or any other Secured Creditor and without waiving any rights Collateral Agent or any other Secured Creditor may have or impairing any declaration of default or election to cause the following remedies with respect Collateral to be sold or any or all Collateral, Specified Collateral and Loan Documents:
sale proceeding predicated on the same: (i) proceed at law demand, collect or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral);
(ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where receive upon all or any part of the Collateral and assemble or require Obligor, at Obligor’s expense, to assemble all or any part of the Collateral and, if Collateral Agent so requests, Obligor shall assemble the Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent; (ii) without notice, demand or other process and without charge enter any of Obligor’s premises and without breach of peace until Collateral Agent completes the enforcement of its rights in the Collateral, Specified take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of Obligor’s equipment for the purpose of completing any work-in-process, preparing any Collateral for disposition and disposing of or collecting any Collateral, and in exercise of its rights under this Agreement, without payment of compensation of any kind, use any and all trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and the like to the extent of Obligor’s rights therein and Obligor hereby grants a license and the right to grant sublicenses for that purpose; (iii) in such manner and to such extent as Collateral Agent may deem necessary to protect the Collateral or the books interests, rights, powers or duties of Collateral Agent, enter into and records relating thereto, or both, are located, to upon any premises of Obligor and take and hold possession of all or any part of the Collateral (Obligor hereby waiving and releasing any claim for damages in respect of such taking) and exclude Obligor and all other Persons from the Collateral, operate and manage the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the books value of the Collateral, collect any and records relating theretoall income, rents, issues, profits and proceeds from the Collateral, the same being hereby assigned and transferred to Collateral Agent, and from time to time apply or bothaccumulate such income, rents, issues, profits and proceeds in such order and manner as Collateral Agent, in its sole discretion, shall instruct, it being understood that the collection or receipt of income, rents, issues, profits or proceeds from the Collateral after declaration of default and election to remove cause the Collateral to be sold under and pursuant to the terms of this Agreement shall not affect or impair any event of default or declaration of default under any agreement or instrument between Obligor and Collateral Agent or election to cause any Collateral to be sold or any sale proceedings predicated on the same, but such proceedings may be conducted and sale effected notwithstanding the collection or receipt of any such income, rents, issues, profits and proceeds; (iv) deliver a notice of exclusive control under any control agreement specifying that Collateral Agent has the exclusive right to give Entitlement Orders with respect to the Investment Property covered by such control agreement or to otherwise direct the disposition of any Deposit Account subject to a control agreement or any Electronic Chattel Paper or Letter-of-Credit Rights controlled by Collateral Agent; (v) take control of any and all of the Accounts, contractual or other rights that are included in the Collateral and Proceeds arising from any such Accounts or contractual or other rights, enforce collection, either in the name of Collateral Agent or in the name of Obligor, of any or all of the Accounts, contractual and other rights that are included in the Collateral and Proceeds by suit or otherwise, receive, receipt for, surrender, release or exchange all or any part of such Collateral or compromise, settle, extend or renew (whether or not longer than the original period) any indebtedness under such Collateral; (vi) sell all or any part of the Collateral at public or Specified private sale at such place or places and at such time or times and in such manner and upon such terms, whether for cash or credit, as Collateral Agent in its sole discretion may determine; (vii) endorse in the name of Obligor any Instrument, however received by Collateral Agent, representing Collateral or Proceeds of any of the books and records relating theretoCollateral; (viii) require Obligor to turn over, or bothinstruct the financial institutions holding the same to turn over, all monies and investments in any of Obligor’s accounts to Collateral Agent; and (viii) exercise all the rights and remedies granted to a secured party under the UCC, and all other rights and remedies given to operate Collateral Agent under this Agreement or conduct sales any other instrument or agreement or otherwise available at law or in equity. Collateral Agent shall be under no obligation to make any of the payments or do any of the acts referred to in this Section 6 or elsewhere in this Agreement and any of the actions referred to in this Section 6 or elsewhere in this Agreement may be taken regardless of whether any notice of default or election to sell has been given under this Agreement (provided, however, that all notices required by law, the giving of which may not be waived, shall be given in accordance with such law) without regard to the adequacy of the security for the Obligations.
49.4. Collateral Agent will give Obligor notice of the time and place of any public sale of the Collateral or Specified Collateral, without of the time after which any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or intended disposition thereof is to the most current addresses designated be made by the Loan Parties to the Lender in writing sending notice, as provided below, at least ten (10) calendar days before the time of the public sale or disposition, which provisions for notice Obligor and Collateral Agent agree are reasonable. No such notice need be given by Collateral Agent with respect to Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
49.5. Collateral Agent shall apply the net proceeds of any sale, lease or other disposition of Collateral, after deducting all costs and expenses of every kind incurred thereon or incidental to the retaking, holding, preparing for sale, selling, leasing, or the like of the Collateral or in any way relating to the rights of Collateral Agent thereunder, including attorneys’ fees and expenses hereinafter provided for, to the payment of the Obligations as provided in Section 9.2 of the Credit Agreement, whether due or not due, absolute or contingent, making proper rebate for interest or discount on items not then due, and only after so applying such net proceeds and after the payment by Collateral Agent of any other amounts required by any existing or future provision of law (including Section 9-615(a)(3) of the Uniform Commercial Code of any jurisdiction in which any of the Collateral may at the time after which be located) need Collateral Agent account for the surplus, if any. Obligor shall remain liable to Collateral Agent for the payment of any other Disposition is to be made;
(vi) deficiency, with interest at the Lenderdefault rate provided for in the instruments, if any, evidencing the Obligations, but if there is no such instrument with respect to any Obligation or no default rate is specified therein, at a variable rate equal to 3% above Collateral Agent’s sole and reasonable discretion, apply reference lending rate applicable to domestic commercial loans as established by Collateral Agent from time to time, but in whole no event shall such rate exceed the maximum rate allowed by law. Collateral Agent may make loans to its customers above, at or below its reference rate.
49.6. Whether or not an Event of Default shall have occurred, Collateral Agent may sell all or any part of the Collateral, although the Obligations may be contingent or unmatured, whenever in partits discretion Collateral Agent considers such sale necessary for its protection. Any such sale may be made without prior demand for payment on account, any Mined Cryptocurrency, margin or additional margin or any other Digital Asset included in demands whatsoever; the making of any such demands shall not establish a course of conduct nor constitute a waiver of the right of Collateral Agent to sell the Collateral as herein provided or in of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;
(vii) exercise any rights granted to right of Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, accelerate the disposition maturity of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii)as herein provided.
Appears in 1 contract
Samples: Continuing General Security Agreement (Napco Security Technologies, Inc)
Remedies of Collateral Agent. If (a) After the occurrence of an Event of Default, Collateral Agent and the other Secured Creditors shall have no obligation to make further loans, extensions of credit or other financial accommodations to or on behalf of Obligor, anything in any other agreement to the contrary notwithstanding.
(b) After the occurrence of an Event of Default, other than an Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement, Collateral Agent may declare by notice to Obligor, any and all Obligations to be immediately due and payable and in the case of any Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement all of the Obligations shall have occurred automatically be and is continuingbecome due and payable, in either case without presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligor, anything in any other agreement to the contrary notwithstanding.
(c) After the occurrence of an Event of Default, Collateral Agent may, and at its option, and the direction of the Required Lenders shall, as directed by the Required Lenders, with or without notice to or demand (other than any Loan Partynotice required by law, exercise the giving of which is not waivable) upon Obligor (all of which are hereby waived by Obligor), without releasing Obligor from any obligation under this Agreement or any other instruments or agreements with Collateral Agent or any other Secured Creditor and without waiving any rights Collateral Agent or any other Secured Creditor may have or impairing any declaration of default or election to cause the following remedies with respect Collateral to be sold or any or all Collateral, Specified Collateral and Loan Documents:
sale proceeding predicated on the same: (i) proceed at law demand, collect or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral);
(ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where receive upon all or any part of the Collateral and assemble or require Obligor, at Obligor’s expense, to assemble all or any part of the Collateral and, if Collateral Agent so requests, Obligor shall assemble the Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent; (ii) without notice, demand or other process and without charge enter any of Obligor’s premises and without breach of peace until Collateral Agent completes the enforcement of its rights in the Collateral, Specified take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of Obligor’s equipment for the purpose of completing any work-in-process, preparing any Collateral for disposition and disposing of or collecting any Collateral, and in exercise of its rights under this Agreement, without payment of compensation of any kind, use any and all trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and the like to the extent of Obligor’s rights therein and Obligor hereby grants a license and the right to grant sublicenses for that purpose; (iii) in such manner and to such extent as Collateral Agent may deem necessary to protect the Collateral or the books interests, rights, powers or duties of Collateral Agent, enter into and records relating thereto, or both, are located, to upon any premises of Obligor and take and hold possession of all or any part of the Collateral (Obligor hereby waiving and releasing any claim for damages in respect of such taking) and exclude Obligor and all other Persons from the Collateral, operate and manage the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the books value of the Collateral, collect any and records relating theretoall income, rents, issues, profits and proceeds from the Collateral, the same being hereby assigned and transferred to Collateral Agent, and from time to time apply or bothaccumulate such income, rents, issues, profits and proceeds in such order and manner as Collateral Agent, in its sole discretion, shall instruct, it being understood that the collection or receipt of income, rents, issues, profits or proceeds from the Collateral after declaration of default and election to remove cause the Collateral to be sold under and pursuant to the terms of this Agreement shall not affect or impair any event of default or declaration of default under any agreement or instrument between Obligor and Collateral Agent or election to cause any Collateral to be sold or any sale proceedings predicated on the same, but such proceedings may be conducted and sale effected notwithstanding the collection or receipt of any such income, rents, issues, profits and proceeds; (iv) deliver a notice of exclusive control under any control agreement specifying that Collateral Agent has the exclusive right to give Entitlement Orders with respect to the Investment Property covered by such control agreement or to otherwise direct the disposition of any Deposit Account subject to a control agreement or any Electronic Chattel Paper or Letter-of-Credit Rights controlled by Collateral Agent; (v) take control of any and all of the Accounts, contractual or other rights that are included in the Collateral and Proceeds arising from any such Accounts or contractual or other rights, enforce collection, either in the name of Collateral Agent or in the name of Obligor, of any or all of the Accounts, contractual and other rights that are included in the Collateral and Proceeds by suit or otherwise, receive, receipt for, surrender, release or exchange all or any part of such Collateral or compromise, settle, extend or renew (whether or not longer than the original period) any indebtedness under such Collateral; (vi) sell all or any part of the Collateral at public or Specified private sale at such place or places and at such time or times and in such manner and upon such terms, whether for cash or credit, as Collateral Agent in its sole discretion may determine; (vii) endorse in the name of Obligor any Instrument, however received by Collateral Agent, representing Collateral or Proceeds of any of the books and records relating theretoCollateral; (viii) require Obligor to turn over, or bothinstruct the financial institutions holding the same to turn over, all monies and investments in any of Obligor’s accounts to Collateral Agent; and (viii) exercise all the rights and remedies granted to a secured party under the UCC, and all other rights and remedies given to operate Collateral Agent under this Agreement or conduct sales any other instrument or agreement or otherwise available at law or in equity. Collateral Agent shall be under no obligation to make any of the payments or do any of the acts referred to in this Section 6 or elsewhere in this Agreement and any of the actions referred to in this Section 6 or elsewhere in this Agreement may be taken regardless of whether any notice of default or election to sell has been given under this Agreement (provided, however, that all notices required by law, the giving of which may not be waived, shall be given in accordance with such law) without regard to the adequacy of the security for the Obligations.
(d) Collateral Agent will give Obligor notice of the time and place of any public sale of the Collateral or Specified Collateral, without of the time after which any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or intended disposition thereof is to the most current addresses designated be made by the Loan Parties to the Lender in writing sending notice, as provided below, at least ten (10) calendar days before the time of the public sale or disposition, which provisions for notice Obligor and Collateral Agent agree are reasonable. No such notice need be given by Collateral Agent with respect to Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
(e) Collateral Agent shall apply the net proceeds of any sale, lease or other disposition of Collateral, after deducting all costs and expenses of every kind incurred thereon or incidental to the retaking, holding, preparing for sale, selling, leasing, or the like of the Collateral or in any way relating to the rights of Collateral Agent thereunder, including attorneys’ fees and expenses hereinafter provided for, to the payment of the Obligations as provided in Section 9.2 of the Credit Agreement, whether due or not due, absolute or contingent, making proper rebate for interest or discount on items not then due, and only after so applying such net proceeds and after the payment by Collateral Agent of any other amounts required by any existing or future provision of law (including Section 9-615(a)(3) of the Uniform Commercial Code of any jurisdiction in which any of the Collateral may at the time after which be located) need Collateral Agent account for the surplus, if any. Obligor shall remain liable to Collateral Agent for the payment of any other Disposition is to be made;
(vi) deficiency, with interest at the Lenderdefault rate provided for in the instruments, if any, evidencing the Obligations, but if there is no such instrument with respect to any Obligation or no default rate is specified therein, at a variable rate equal to 3% above Collateral Agent’s sole and reasonable discretion, apply reference lending rate applicable to domestic commercial loans as established by Collateral Agent from time to time, but in whole no event shall such rate exceed the maximum rate allowed by law. Collateral Agent may make loans to its customers above, at or below its reference rate.
(f) Whether or not an Event of Default shall have occurred, Collateral Agent may sell all or any part of the Collateral, although the Obligations may be contingent or unmatured, whenever in partits discretion Collateral Agent considers such sale necessary for its protection. Any such sale may be made without prior demand for payment on account, any Mined Cryptocurrency, margin or additional margin or any other Digital Asset included in demands whatsoever; the making of any such demands shall not establish a course of conduct nor constitute a waiver of the right of Collateral Agent to sell the Collateral as herein provided or in of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;
(vii) exercise any rights granted to right of Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, accelerate the disposition maturity of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costsObligations as herein provided. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii).
Appears in 1 contract
Samples: Credit Agreement (Napco Security Technologies, Inc)
Remedies of Collateral Agent. If 142.1. After the occurrence of an Event of Default, Collateral Agent and the other Secured Creditors shall have no obligation to make further loans, extensions of credit or other financial accommodations to or on behalf of Obligor, anything in any other agreement to the contrary notwithstanding.
142.2. After the occurrence of an Event of Default, other than an Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement, Collateral Agent may declare by notice to Obligor, any and all Obligations to be immediately due and payable and in the case of any Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement all of the Obligations shall have occurred automatically be and is continuingbecome due and payable, in either case without presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligor, anything in any other agreement to the contrary notwithstanding.
142.3. After the occurrence of an Event of Default, Collateral Agent may, and at its option, and the direction of the Required Lenders shall, as directed by the Required Lenders, with or without notice to or demand (other than any Loan Partynotice required by law, exercise the giving of which is not waivable) upon Obligor (all of which are hereby waived by Obligor), without releasing Obligor from any obligation under this Agreement or any other instruments or agreements with Collateral Agent or any other Secured Creditor and without waiving any rights Collateral Agent or any other Secured Creditor may have or impairing any declaration of default or election to cause the following remedies with respect Collateral to be sold or any or all Collateral, Specified Collateral and Loan Documents:
sale proceeding predicated on the same: (i) proceed at law demand, collect or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral);
(ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where receive upon all or any part of the Collateral and assemble or require Obligor, at Obligor’s expense, to assemble all or any part of the Collateral and, if Collateral Agent so requests, Obligor shall assemble the Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent; (ii) without notice, demand or other process and without charge enter any of Obligor’s premises and without breach of peace until Collateral Agent completes the enforcement of its rights in the Collateral, Specified take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of Obligor’s equipment for the purpose of completing any work-in-process, preparing any Collateral for disposition and disposing of or collecting any Collateral, and in exercise of its rights under this Agreement, without payment of compensation of any kind, use any and all trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and the like to the extent of Obligor’s rights therein and Obligor hereby grants a license and the right to grant sublicenses for that purpose; (iii) in such manner and to such extent as Collateral Agent may deem necessary to protect the Collateral or the books interests, rights, powers or duties of Collateral Agent, enter into and records relating thereto, or both, are located, to upon any premises of Obligor and take and hold possession of all or any part of the Collateral (Obligor hereby waiving and releasing any claim for damages in respect of such taking) and exclude Obligor and all other Persons from the Collateral, operate and manage the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the books value of the Collateral, collect any and records relating theretoall income, rents, issues, profits and proceeds from the Collateral, the same being hereby assigned and transferred to Collateral Agent, and from time to time apply or bothaccumulate such income, rents, issues, profits and proceeds in such order and manner as Collateral Agent, in its sole discretion, shall instruct, it being understood that the collection or receipt of income, rents, issues, profits or proceeds from the Collateral after declaration of default and election to remove cause the Collateral to be sold under and pursuant to the terms of this Agreement shall not affect or impair any event of default or declaration of default under any agreement or instrument between Obligor and Collateral Agent or election to cause any Collateral to be sold or any sale proceedings predicated on the same, but such proceedings may be conducted and sale effected notwithstanding the collection or receipt of any such income, rents, issues, profits and proceeds; (iv) deliver a notice of exclusive control under any control agreement specifying that Collateral Agent has the exclusive right to give Entitlement Orders with respect to the Investment Property covered by such control agreement or to otherwise direct the disposition of any Deposit Account subject to a control agreement or any Electronic Chattel Paper or Letter-of-Credit Rights controlled by Collateral Agent; (v) take control of any and all of the Accounts, contractual or other rights that are included in the Collateral and Proceeds arising from any such Accounts or contractual or other rights, enforce collection, either in the name of Collateral Agent or in the name of Obligor, of any or all of the Accounts, contractual and other rights that are included in the Collateral and Proceeds by suit or otherwise, receive, receipt for, surrender, release or exchange all or any part of such Collateral or compromise, settle, extend or renew (whether or not longer than the original period) any indebtedness under such Collateral; (vi) sell all or any part of the Collateral at public or Specified private sale at such place or places and at such time or times and in such manner and upon such terms, whether for cash or credit, as Collateral Agent in its sole discretion may determine; (vii) endorse in the name of Obligor any Instrument, however received by Collateral Agent, representing Collateral or Proceeds of any of the books and records relating theretoCollateral; (viii) require Obligor to turn over, or bothinstruct the financial institutions holding the same to turn over, all monies and investments in any of Obligor’s accounts to Collateral Agent; and (viii) exercise all the rights and remedies granted to a secured party under the UCC, and all other rights and remedies given to operate Collateral Agent under this Agreement or conduct sales any other instrument or agreement or otherwise available at law or in equity. Collateral Agent shall be under no obligation to make any of the payments or do any of the acts referred to in this Section 6 or elsewhere in this Agreement and any of the actions referred to in this Section 6 or elsewhere in this Agreement may be taken regardless of whether any notice of default or election to sell has been given under this Agreement (provided, however, that all notices required by law, the giving of which may not be waived, shall be given in accordance with such law) without regard to the adequacy of the security for the Obligations.
142.4. Collateral Agent will give Obligor notice of the time and place of any public sale of the Collateral or Specified Collateral, without of the time after which any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or intended disposition thereof is to the most current addresses designated be made by the Loan Parties to the Lender in writing sending notice, as provided below, at least ten (10) calendar days before the time of the public sale or disposition, which provisions for notice Obligor and Collateral Agent agree are reasonable. No such notice need be given by Collateral Agent with respect to Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
142.5. Collateral Agent shall apply the net proceeds of any sale, lease or other disposition of Collateral, after deducting all costs and expenses of every kind incurred thereon or incidental to the retaking, holding, preparing for sale, selling, leasing, or the like of the Collateral or in any way relating to the rights of Collateral Agent thereunder, including attorneys’ fees and expenses hereinafter provided for, to the payment of the Obligations as provided in Section 9.2 of the Credit Agreement, whether due or not due, absolute or contingent, making proper rebate for interest or discount on items not then due, and only after so applying such net proceeds and after the payment by Collateral Agent of any other amounts required by any existing or future provision of law (including Section 9-615(a)(3) of the Uniform Commercial Code of any jurisdiction in which any of the Collateral may at the time after which be located) need Collateral Agent account for the surplus, if any. Obligor shall remain liable to Collateral Agent for the payment of any other Disposition is to be made;
(vi) deficiency, with interest at the Lenderdefault rate provided for in the instruments, if any, evidencing the Obligations, but if there is no such instrument with respect to any Obligation or no default rate is specified therein, at a variable rate equal to 3% above Collateral Agent’s sole and reasonable discretion, apply reference lending rate applicable to domestic commercial loans as established by Collateral Agent from time to time, but in whole no event shall such rate exceed the maximum rate allowed by law. Collateral Agent may make loans to its customers above, at or below its reference rate.
142.6. Whether or not an Event of Default shall have occurred, Collateral Agent may sell all or any part of the Collateral, although the Obligations may be contingent or unmatured, whenever in partits discretion Collateral Agent considers such sale necessary for its protection. Any such sale may be made without prior demand for payment on account, any Mined Cryptocurrency, margin or additional margin or any other Digital Asset included in demands whatsoever; the making of any such demands shall not establish a course of conduct nor constitute a waiver of the right of Collateral Agent to sell the Collateral as herein provided or in of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;
(vii) exercise any rights granted to right of Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, accelerate the disposition maturity of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii)as herein provided.
Appears in 1 contract
Samples: Continuing General Security Agreement (Napco Security Technologies, Inc)
Remedies of Collateral Agent. If 17.1. After the occurrence of an Event of Default, Collateral Agent and the other Secured Creditors shall have no obligation to make further loans, extensions of credit or other financial accommodations to or on behalf of Obligor, anything in any other agreement to the contrary notwithstanding.
17.2. After the occurrence of an Event of Default, other than an Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement, Collateral Agent may declare by notice to Obligor, any and all Obligations to be immediately due and payable and in the case of any Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement all of the Obligations shall have occurred automatically be and is continuingbecome due and payable, in either case without presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligor, anything in any other agreement to the contrary notwithstanding.
17.3. After the occurrence of an Event of Default, Collateral Agent may, and at its option, and the direction of the Required Lenders shall, as directed by the Required Lenders, with or without notice to or demand (other than any Loan Partynotice required by law, exercise the giving of which is not waivable) upon Obligor (all of which are hereby waived by Obligor), without releasing Obligor from any obligation under this Agreement or any other instruments or agreements with Collateral Agent or any other Secured Creditor and without waiving any rights Collateral Agent or any other Secured Creditor may have or impairing any declaration of default or election to cause the following remedies with respect Collateral to be sold or any or all Collateral, Specified Collateral and Loan Documents:
sale proceeding predicated on the same: (i) proceed at law demand, collect or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral);
(ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where receive upon all or any part of the Collateral and assemble or require Obligor, at Obligor’s expense, to assemble all or any part of the Collateral and, if Collateral Agent so requests, Obligor shall assemble the Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent; (ii) without notice, demand or other process and without charge enter any of Obligor’s premises and without breach of peace until Collateral Agent completes the enforcement of its rights in the Collateral, Specified take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of Obligor’s equipment for the purpose of completing any work-in-process, preparing any Collateral for disposition and disposing of or collecting any Collateral, and in exercise of its rights under this Agreement, without payment of compensation of any kind, use any and all trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and the like to the extent of Obligor’s rights therein and Obligor hereby grants a license and the right to grant sublicenses for that purpose; (iii) in such manner and to such extent as Collateral Agent may deem necessary to protect the Collateral or the books interests, rights, powers or duties of Collateral Agent, enter into and records relating thereto, or both, are located, to upon any premises of Obligor and take and hold possession of all or any part of the Collateral (Obligor hereby waiving and releasing any claim for damages in respect of such taking) and exclude Obligor and all other Persons from the Collateral, operate and manage the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the books value of the Collateral, collect any and records relating theretoall income, rents, issues, profits and proceeds from the Collateral, the same being hereby assigned and transferred to Collateral Agent, and from time to time apply or bothaccumulate such income, rents, issues, profits and proceeds in such order and manner as Collateral Agent, in its sole discretion, shall instruct, it being understood that the collection or receipt of income, rents, issues, profits or proceeds from the Collateral after declaration of default and election to remove cause the Collateral to be sold under and pursuant to the terms of this Agreement shall not affect or impair any event of default or declaration of default under any agreement or instrument between Obligor and Collateral Agent or election to cause any Collateral to be sold or any sale proceedings predicated on the same, but such proceedings may be conducted and sale effected notwithstanding the collection or receipt of any such income, rents, issues, profits and proceeds; (iv) deliver a notice of exclusive control under any control agreement specifying that Collateral Agent has the exclusive right to give Entitlement Orders with respect to the Investment Property covered by such control agreement or to otherwise direct the disposition of any Deposit Account subject to a control agreement or any Electronic Chattel Paper or Letter-of-Credit Rights controlled by Collateral Agent; (v) take control of any and all of the Accounts, contractual or other rights that are included in the Collateral and Proceeds arising from any such Accounts or contractual or other rights, enforce collection, either in the name of Collateral Agent or in the name of Obligor, of any or all of the Accounts, contractual and other rights that are included in the Collateral and Proceeds by suit or otherwise, receive, receipt for, surrender, release or exchange all or any part of such Collateral or compromise, settle, extend or renew (whether or not longer than the original period) any indebtedness under such Collateral; (vi) sell all or any part of the Collateral at public or Specified private sale at such place or places and at such time or times and in such manner and upon such terms, whether for cash or credit, as Collateral Agent in its sole discretion may determine; (vii) endorse in the name of Obligor any Instrument, however received by Collateral Agent, representing Collateral or Proceeds of any of the books and records relating theretoCollateral; (viii) require Obligor to turn over, or bothinstruct the financial institutions holding the same to turn over, all monies and investments in any of Obligor’s accounts to Collateral Agent; and (viii) exercise all the rights and remedies granted to a secured party under the UCC, and all other rights and remedies given to operate Collateral Agent under this Agreement or conduct sales any other instrument or agreement or otherwise available at law or in equity. Collateral Agent shall be under no obligation to make any of the payments or do any of the acts referred to in this Section 6 or elsewhere in this Agreement and any of the actions referred to in this Section 6 or elsewhere in this Agreement may be taken regardless of whether any notice of default or election to sell has been given under this Agreement (provided, however, that all notices required by law, the giving of which may not be waived, shall be given in accordance with such law) without regard to the adequacy of the security for the Obligations.
17.4. Collateral Agent will give Obligor notice of the time and place of any public sale of the Collateral or Specified Collateral, without of the time after which any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or intended disposition thereof is to the most current addresses designated be made by the Loan Parties to the Lender in writing sending notice, as provided below, at least ten (10) calendar days before the time of the public sale or disposition, which provisions for notice Obligor and Collateral Agent agree are reasonable. No such notice need be given by Collateral Agent with respect to Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
17.5. Collateral Agent shall apply the net proceeds of any sale, lease or other disposition of Collateral, after deducting all costs and expenses of every kind incurred thereon or incidental to the retaking, holding, preparing for sale, selling, leasing, or the like of the Collateral or in any way relating to the rights of Collateral Agent thereunder, including attorneys’ fees and expenses hereinafter provided for, to the payment of the Obligations as provided in Section 9.2 of the Credit Agreement, whether due or not due, absolute or contingent, making proper rebate for interest or discount on items not then due, and only after so applying such net proceeds and after the payment by Collateral Agent of any other amounts required by any existing or future provision of law (including Section 9-615(a)(3) of the Uniform Commercial Code of any jurisdiction in which any of the Collateral may at the time after which be located) need Collateral Agent account for the surplus, if any. Obligor shall remain liable to Collateral Agent for the payment of any other Disposition is to be made;
(vi) deficiency, with interest at the Lenderdefault rate provided for in the instruments, if any, evidencing the Obligations, but if there is no such instrument with respect to any Obligation or no default rate is specified therein, at a variable rate equal to 3% above Collateral Agent’s sole and reasonable discretion, apply reference lending rate applicable to domestic commercial loans as established by Collateral Agent from time to time, but in whole no event shall such rate exceed the maximum rate allowed by law. Collateral Agent may make loans to its customers above, at or below its reference rate.
17.6. Whether or not an Event of Default shall have occurred, Collateral Agent may sell all or any part of the Collateral, although the Obligations may be contingent or unmatured, whenever in partits discretion Collateral Agent considers such sale necessary for its protection. Any such sale may be made without prior demand for payment on account, any Mined Cryptocurrency, margin or additional margin or any other Digital Asset included in demands whatsoever; the making of any such demands shall not establish a course of conduct nor constitute a waiver of the right of Collateral Agent to sell the Collateral as herein provided or in of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;
(vii) exercise any rights granted to right of Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, accelerate the disposition maturity of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii)as herein provided.
Appears in 1 contract
Samples: Continuing General Security Agreement (Napco Security Technologies, Inc)
Remedies of Collateral Agent. If an At any time after a Secured Obligation Event of Default shall have occurred occurs and is continuing, the Collateral Agent may, at its option, and shall, as directed by has the Required Lenders, with or without notice right to any Loan Party, exercise any of the following remedies with respect to do any or all Collateral, Specified Collateral and Loan Documentsof the following:
(ia) proceed at law The Collateral Agent may exercise any and all rights and remedies of the Pledgor under or in equity to enforce specifically performance by connection with the Loan Parties Borrower Operating Agreement, the Membership Interests or recover damages, including all rights available to Collateral Agent or otherwise in respect of the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation limitation, any Digital Assets and all rights of such Pledgor to demand or otherwise require payment of any amount under, or performance of any provision of, the Borrower Operating Agreement and all rights of such Pledgor to control the operations of the Borrowers Borrower. In addition, the Collateral Agent may, but shall not be obligated to cure any default by the Pledgor under the Borrower Operating Agreement.
(whether or not b) The Collateral Agent shall have the UCC applies right in its discretion and without notice to the affected Pledgor, to transfer to or to register in the name of the Collateral Agent or any of its nominees any or all of the Collateral);.
(c) Upon written notice of the Collateral Agent to the Pledgor, all rights of the Pledgor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise shall cease, and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon, so long as the Secured Obligation Event of Default is continuing, have the sole right to exercise or refrain from exercising in a reasonable manner such voting and other consensual rights in aid of foreclosure or other enforcement of its security interest in the Collateral.
(d) The Collateral Agent may (i) notify the Borrower to make payment and performance due to the Pledgor under the Borrower Operating Agreement to the Collateral Agent, (ii) require extend the Loan Parties time of payment and performance of, or compromise or settle for cash, credit or otherwise, and upon any terms and conditions, the obligations of the Pledgor under the Borrower Operating Agreement, (iii) file any claims, commence, maintain, settle or discontinue any actions, suits or other proceedings deemed by the Collateral Agent in its sole discretion necessary or advisable for the purpose of collecting upon the Collateral or enforcing the Borrower Operating Agreement, and (iv) execute any instrument and do all other things deemed necessary and proper by the Collateral Agent in its sole discretion to promptly assembleprotect and preserve and permit the Collateral Agent to realize upon the Collateral and the other rights contemplated thereby.
(e) The Collateral Agent may exercise in respect of the Collateral, make in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and if requested by remedies of a secured party upon default under the UCC, and may also, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, deliver all Mined Cryptocurrency related for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable. The Pledgor agrees that, to the Equipment and constituting Collateralextent notice of sale shall be required by law, along with any and all other Collateral and Specified Collateral at least 10 days’ written notice, in any Borrower’s possession a manner provided in Section 14, to Collateral Agent at a the Pledgor of the time and place designated by of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent; and take such actions as Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may request adjourn any public or private sale from time to grant time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(f) In view of the position of the Pledgor in relation to the Collateral, or because of other current or future circumstances, questions may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Collateral permitted hereunder. The Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agent exclusive access and control over any Digital Asset wallet if the Collateral Agent were to attempt to dispose of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where all or any part of the Collateral, Specified and might also limit the extent to which or the manner in which any subsequent transferee of any Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Collateral under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. The Pledgor recognizes that in light of the foregoing restrictions and limitations the Collateral Agent may, with respect to any sale of Collateral, to the extent commercially reasonable, limit the purchasers to those who will agree, among other things, to acquire Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that, in light of the foregoing restrictions and limitations, the Collateral Agent, in a commercially reasonable manner, (i) may proceed to make such a sale whether or not a registration statement for the purpose of registering the Collateral or part thereof shall have been filed under the books Federal Securities Laws and records relating thereto(ii) may approach and negotiate with a single possible purchaser to effect such sale. The Pledgor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, neither the Collateral Agent nor any other Secured Party shall incur any responsibility or both, are located, to take possession of liability for selling all or any part of the Collateral at a price that the Collateral Agent, in a commercially reasonable manner, may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility that a higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this paragraph will apply notwithstanding the books and records relating theretoexistence of a public or private market upon which the quotations or sales prices may exceed the price at which the Collateral Agent sells. The Pledgor agrees that sales made pursuant to this paragraph are made in a commercially reasonable manner.
(g) All payments made under or in connection with the Borrower Operating Agreement, the Membership Interests, or both, to remove all or any part otherwise in respect of the Collateral or Specified and received by the Collateral or Agent may, in the books and records relating thereto, or both, and to operate or conduct sales discretion of the Collateral or Specified Collateral, without any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use Agent and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required permitted by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or to the most current addresses designated held by the Loan Parties to Collateral Agent as collateral for the Lender in writing at least ten (10) calendar days before the time of the public sale Secured Obligations, and then or the time after which any other Disposition as soon thereafter as is to be made;
(vi) at the Lender’s sole and reasonable discretion, apply from time to time, reasonably practicable applied in whole or in part, any Mined Cryptocurrency, or any other Digital Asset included in part by the Collateral or Agent in accordance with Section 3.06 of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;Collateral Agency Agreement.
(viih) exercise any rights granted to The Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any may send to each bank, securities intermediary and take any action therein with respect to such Collateral, including, without limitation, the disposition of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access issuer party to any ACA Wallet and Disposing Uncertificated Security Control Agreement a “Notice of the Digital Assets Exclusive Control” as defined in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii)agreement.
Appears in 1 contract
Remedies of Collateral Agent. If 98.1. After the occurrence of an Event of Default, Collateral Agent and the other Secured Creditors shall have no obligation to make further loans, extensions of credit or other financial accommodations to or on behalf of Obligor, anything in any other agreement to the contrary notwithstanding.
98.2. After the occurrence of an Event of Default, other than an Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement, Collateral Agent may declare by notice to Obligor, any and all Obligations to be immediately due and payable and in the case of any Event of Default referred to in sub-clauses (i) and (ii) of Section 9.1(h) of the Credit Agreement all of the Obligations shall have occurred automatically be and is continuingbecome due and payable, in either case without presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligor, anything in any other agreement to the contrary notwithstanding.
98.3. After the occurrence of an Event of Default, Collateral Agent may, and at its option, and the direction of the Required Lenders shall, as directed by the Required Lenders, with or without notice to or demand (other than any Loan Partynotice required by law, exercise the giving of which is not waivable) upon Obligor (all of which are hereby waived by Obligor), without releasing Obligor from any obligation under this Agreement or any other instruments or agreements with Collateral Agent or any other Secured Creditor and without waiving any rights Collateral Agent or any other Secured Creditor may have or impairing any declaration of default or election to cause the following remedies with respect Collateral to be sold or any or all Collateral, Specified Collateral and Loan Documents:
sale proceeding predicated on the same: (i) proceed at law demand, collect or in equity to enforce specifically performance by the Loan Parties or recover damages, including all rights available to Collateral Agent or the Lender under the UCC with respect to any Collateral or Specified Collateral, including, without limitation any Digital Assets of the Borrowers (whether or not the UCC applies to the affected Collateral);
(ii) require the Loan Parties to promptly assemble, make available and if requested by Collateral Agent, deliver all Mined Cryptocurrency related to the Equipment and constituting Collateral, along with any and all other Collateral and Specified Collateral in any Borrower’s possession to Collateral Agent at a time and place designated by Collateral Agent; and take such actions as Collateral Agent may request to grant Collateral Agent exclusive access and control over any Digital Asset wallet of the Borrowers or other Digital Asset platforms where any of the Borrowers store or house (or where any other person houses or stores on their behalf) any Digital Assets that are Collateral hereunder;
(iii) enter, occupy and use any premises, with or without judicial process, where receive upon all or any part of the Collateral and assemble or require Obligor, at Obligor’s expense, to assemble all or any part of the Collateral and, if Collateral Agent so requests, Obligor shall assemble the Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent; (ii) without notice, demand or other process and without charge enter any of Obligor’s premises and without breach of peace until Collateral Agent completes the enforcement of its rights in the Collateral, Specified take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of Obligor’s equipment for the purpose of completing any work-in-process, preparing any Collateral for disposition and disposing of or collecting any Collateral, and in exercise of its rights under this Agreement, without payment of compensation of any kind, use any and all trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and the like to the extent of Obligor’s rights therein and Obligor hereby grants a license and the right to grant sublicenses for that purpose; (iii) in such manner and to such extent as Collateral Agent may deem necessary to protect the Collateral or the books interests, rights, powers or duties of Collateral Agent, enter into and records relating thereto, or both, are located, to upon any premises of Obligor and take and hold possession of all or any part of the Collateral (Obligor hereby waiving and releasing any claim for damages in respect of such taking) and exclude Obligor and all other Persons from the Collateral, operate and manage the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the books value of the Collateral, collect any and records relating theretoall income, rents, issues, profits and proceeds from the Collateral, the same being hereby assigned and transferred to Collateral Agent, and from time to time apply or bothaccumulate such income, rents, issues, profits and proceeds in such order and manner as Collateral Agent, in its sole discretion, shall instruct, it being understood that the collection or receipt of income, rents, issues, profits or proceeds from the Collateral after declaration of default and election to remove cause the Collateral to be sold under and pursuant to the terms of this Agreement shall not affect or impair any event of default or declaration of default under any agreement or instrument between Obligor and Collateral Agent or election to cause any Collateral to be sold or any sale proceedings predicated on the same, but such proceedings may be conducted and sale effected notwithstanding the collection or receipt of any such income, rents, issues, profits and proceeds; (iv) deliver a notice of exclusive control under any control agreement specifying that Collateral Agent has the exclusive right to give Entitlement Orders with respect to the Investment Property covered by such control agreement or to otherwise direct the disposition of any Deposit Account subject to a control agreement or any Electronic Chattel Paper or Letter-of-Credit Rights controlled by Collateral Agent; (v) take control of any and all of the Accounts, contractual or other rights that are included in the Collateral and Proceeds arising from any such Accounts or contractual or other rights, enforce collection, either in the name of Collateral Agent or in the name of Obligor, of any or all of the Accounts, contractual and other rights that are included in the Collateral and Proceeds by suit or otherwise, receive, receipt for, surrender, release or exchange all or any part of such Collateral or compromise, settle, extend or renew (whether or not longer than the original period) any indebtedness under such Collateral; (vi) sell all or any part of the Collateral at public or Specified private sale at such place or places and at such time or times and in such manner and upon such terms, whether for cash or credit, as Collateral Agent in its sole discretion may determine; (vii) endorse in the name of Obligor any Instrument, however received by Collateral Agent, representing Collateral or Proceeds of any of the books and records relating theretoCollateral; (viii) require Obligor to turn over, or bothinstruct the financial institutions holding the same to turn over, all monies and investments in any of Obligor’s accounts to Collateral Agent; and (viii) exercise all the rights and remedies granted to a secured party under the UCC, and all other rights and remedies given to operate Collateral Agent under this Agreement or conduct sales any other instrument or agreement or otherwise available at law or in equity. Collateral Agent shall be under no obligation to make any of the payments or do any of the acts referred to in this Section 6 or elsewhere in this Agreement and any of the actions referred to in this Section 6 or elsewhere in this Agreement may be taken regardless of whether any notice of default or election to sell has been given under this Agreement (provided, however, that all notices required by law, the giving of which may not be waived, shall be given in accordance with such law) without regard to the adequacy of the security for the Obligations.
98.4. Collateral Agent will give Obligor notice of the time and place of any public sale of the Collateral or Specified Collateral, without of the time after which any obligation to pay the Loan Parties or any of their Subsidiaries or Affiliates for such use and occupancy;
(iv) use the Loan Parties’ premises for storage without rent or liability;
(v) dispose of Mined Cryptocurrency, any other Digital Asset that constitutes Collateral, and other Collateral or Specified Collateral at private or public sale, in bulk or in parcels, whether Collateral is present at such sale and with or without notice except to the extent required by applicable law, and if notice is required by law such requirements of reasonable notice shall be met if such notice is mailed to the Borrower Representative or any other Loan Party at its respective address set forth on the first page hereof or intended disposition thereof is to the most current addresses designated be made by the Loan Parties to the Lender in writing sending notice, as provided below, at least ten (10) calendar days before the time of the public sale or disposition, which provisions for notice Obligor and Collateral Agent agree are reasonable. No such notice need be given by Collateral Agent with respect to Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
98.5. Collateral Agent shall apply the net proceeds of any sale, lease or other disposition of Collateral, after deducting all costs and expenses of every kind incurred thereon or incidental to the retaking, holding, preparing for sale, selling, leasing, or the like of the Collateral or in any way relating to the rights of Collateral Agent thereunder, including attorneys’ fees and expenses hereinafter provided for, to the payment of the Obligations as provided in Section 9.2 of the Credit Agreement, whether due or not due, absolute or contingent, making proper rebate for interest or discount on items not then due, and only after so applying such net proceeds and after the payment by Collateral Agent of any other amounts required by any existing or future provision of law (including Section 9-615(a)(3) of the Uniform Commercial Code of any jurisdiction in which any of the Collateral may at the time after which be located) need Collateral Agent account for the surplus, if any. Obligor shall remain liable to Collateral Agent for the payment of any other Disposition is to be made;
(vi) deficiency, with interest at the Lenderdefault rate provided for in the instruments, if any, evidencing the Obligations, but if there is no such instrument with respect to any Obligation or no default rate is specified therein, at a variable rate equal to 3% above Collateral Agent’s sole and reasonable discretion, apply reference lending rate applicable to domestic commercial loans as established by Collateral Agent from time to time, but in whole no event shall such rate exceed the maximum rate allowed by law. Collateral Agent may make loans to its customers above, at or below its reference rate.
98.6. Whether or not an Event of Default shall have occurred, Collateral Agent may sell all or any part of the Collateral, although the Obligations may be contingent or unmatured, whenever in partits discretion Collateral Agent considers such sale necessary for its protection. Any such sale may be made without prior demand for payment on account, any Mined Cryptocurrency, margin or additional margin or any other Digital Asset included in demands whatsoever; the making of any such demands shall not establish a course of conduct nor constitute a waiver of the right of Collateral Agent to sell the Collateral as herein provided or in of the Lender’s (or it’s Affiliate’s) possession or control, to reduce the Obligations;
(vii) exercise any rights granted to right of Collateral Agent under any Acceptable Lien Waiver;
(viii) give notice of sole control or any other instruction under any deposit account control agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral, including, without limitation, accelerate the disposition maturity of the amounts on deposit in any such account;
(ix) give notice of sole control or any other instruction under any ACA Wallet Agreement with any Wallet Custodian and take any action therein with respect to such Collateral, including, without limitation, immediately blocking any Loan Party’s access to any ACA Wallet and Disposing of the Digital Assets in such ACA Wallet in the enforcement of Collateral Agent’s rights under this Master Agreement;
(x) direct any Mined Cryptocurrency from the Equipment to a wallet or address for Digital Assets that is not the ACA Wallet; and
(xi) exercise any other right or remedy at law, or in equity or bankruptcy, including specific performance or damages for the breach hereof, including Attorney’s Fees and court costs. Collateral Agent shall distribute any Mined Cryptocurrency produced by or derived from Equipment under a Loan Schedule to the Obligations hereunder and under the Loan Documents, in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any other Collateral (including any Digital Assets not produced by or derived from such Equipment) pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(f). In the event Collateral Agent Disposes of any Specified Collateral pursuant to and permitted by this Master Agreement, Collateral Agent shall distribute such Collateral or proceeds thereof in the manner set forth in Section 3(e)(ii)as herein provided.
Appears in 1 contract
Samples: Continuing General Security Agreement (Napco Security Technologies, Inc)
