Remedies of Default. (a) If at any time an Event of Default shall have occurred and be continuing, then, in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured Obligations, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below: (i) Apply any cash held by it hereunder; (ii) Have the right generally to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and (iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. (b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so. (c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances. (d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Default.
Appears in 3 contracts
Samples: Pledge and Security Agreement (Perry Ellis International, Inc), Pledge and Security Agreement (Perry Ellis International, Inc), Pledge and Security Agreement (Feldenkreis George)
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (f), (g), (h), (i) or (j)), terminate its commitment to make any time Loans hereunder and/or declare immediately due and payable all principal, interest and other Obligations payable hereunder and under the Promissory Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the Code, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement, the Guarantee and the AMC Guarantee and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limiting the generality of the foregoing, if an Event of Default or Other RF Event of Default shall occur and be continuing Lender may sell the Collateral in a commercially reasonable manner as determined by Lender (subject to the limitations set forth in the Trust Agreement), instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default or Other RF Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations and Other RF Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(b) Without limitation to any of the provisions or remedies set forth in Section 8.2(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured ObligationsLender's sole discretion, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
make a principal payment on the Loans in such amount as Lender shall specify or (ii) Have pledge additional Collateral having such value, as determined by Lender in its sole discretion, as Lender shall specify. If Lender consents to Borrower's taking such action as is described in this Section 8.2(b) upon an Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency between the right generally amount of the Obligations and the amount of the principal payment or pledge of additional Collateral made pursuant hereto, and under no circumstances shall Lender's consent to exercise any and all rights afforded to such action be construed as a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase waiver of such Collateral. The Pledgor agrees that, to deficiency or a modification of the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do soObligations.
(c) Each of In the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise event that Borrower shall be cumulative and concurrent and shall be hereinafter pledge any Collateral in addition to every other rightthe Collateral pledged to Lender on the date hereof, power or remedy provided for herein or therein or now or hereafter existing at law or Borrower shall, concurrently with such pledge, deliver to Lender an opinion of counsel in equity or by statute or otherwise. The exercise form and substance reasonably satisfactory to Lender regarding priority, perfection and the absence of any Liens in respect of such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstancesCollateral.
(d) Notwithstanding anything in Section 6.5 to the contrary contained hereincontrary, it is expressly understood and agreed that Lender shall have sole discretion in determining whether to enforce the Company hereby agrees thatcovenants set forth in Section 6.5 or immediately to pursue the remedies set forth in this Section 8.2 upon the occurrence of a material adverse change as described in Section 8.1(n). Under no circumstances shall Lender's decision to enforce the covenants set forth in Section 6.5 following such a material adverse change be construed as a waiver of the Event of Default described in Section 8.1(n), or otherwise in any way modify, limit, delay or impair any rights which Lender would otherwise have pursuant to this Section 8.2.
(e) Lender shall use its reasonable efforts to notify Guarantor and AMC upon the occurrence of an Event of Default; PROVIDED that the omission so to notify shall not relieve Guarantor or AMC from any liability which it may have to Lender (or extend the period of time within which performance is required by Guarantor or AMC) in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against or from any of its respective obligations under the minimum amount of Collateral reasonably needed (Guarantee or the AMC Guarantee, as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Defaultcase may be.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (f), (g), (h), (i) or (j)), terminate its commitment to make any time Loans hereunder and/or declare immediately due and payable all principal, interest and other Obligations payable hereunder and under the Promissory Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the Code, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement, the Guarantee and the AMC Guarantee and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limiting the generality of the foregoing, if an Event of Default or Other RF Event of Default shall occur and be continuing Lender may sell the Collateral in a commercially reasonable manner as determined by Lender (subject to the limitations set forth in the Trust Agreement), instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default or Other RF Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations and Other RF Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(b) (ii) Without limitation to any of the provisions or remedies set forth in Section 8.2(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured ObligationsLender's sole discretion, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
make a principal payment on the Loans in such amount as Lender shall specify or (ii) Have pledge additional Collateral having such value, as determined by Lender in its sole discretion, as Lender shall specify. If Lender consents to Borrower's taking such action as is described in this Section 8.2(b) upon an Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency between the right generally amount of the Obligations and the amount of the principal payment or pledge of additional Collateral made pursuant hereto, and under no circumstances shall Lender's consent to exercise any and all rights afforded to such action be construed as a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase waiver of such Collateral. The Pledgor agrees that, to deficiency or a modification of the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do soObligations.
(c) Each of (ii) In the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise event that Borrower shall be cumulative and concurrent and shall be hereinafter pledge any Collateral in addition to every other rightthe Collateral pledged to Lender on the date hereof, power or remedy provided for herein or therein or now or hereafter existing at law or Borrower shall, concurrently with such pledge, deliver to Lender an opinion of counsel in equity or by statute or otherwise. The exercise form and substance reasonably satisfactory to Lender regarding priority, perfection and the absence of any Liens in respect of such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstancesCollateral.
(d) Notwithstanding anything in Section 6.5 to the contrary contained hereincontrary, it is expressly understood and agreed that Lender shall have sole discretion in determining whether to enforce the Company hereby agrees thatcovenants set forth in Section 6.5 or immediately to pursue the remedies set forth in this Section 8.2 upon the occurrence of a material adverse change as described in Section 8.1(n). Under no circumstances shall Lender's decision to enforce the covenants set forth in Section 6.5 following such a material adverse change be construed as a waiver of the Event of Default described in Section 8.1(n), or otherwise in any way modify, limit, delay or impair any rights which Lender would otherwise have pursuant to this Section 8.2.
(e) Lender shall use its reasonable efforts to notify Guarantor and AMC upon the occurrence of an Event of Default; PROVIDED that the omission so to notify shall not relieve Guarantor or AMC from any liability which it may have to Lender (or extend the period of time within which performance is required by Guarantor or AMC) in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against or from any of its respective obligations under the minimum amount of Collateral reasonably needed (Guarantee or the AMC Guarantee, as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Defaultcase may be.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (e), (f), (g) or (h) of Section 8.01), terminate its Commitment to make any time Loans hereunder, and declare immediately due and payable all principal, interest and other Obligations payable hereunder and under each Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the UCC, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limitation to the foregoing, such actions may include selling the Collateral in a commercially reasonable manner as determined by Lender, instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default, Borrower shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(i) Without limitation to any of the provisions or remedies set forth in Section 8.02(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition Lender's sole discretion, (A) make a principal payment on the Loans in such amount as Lender shall specify or (B) pledge additional Collateral having such value, as determined by Lender in its sole discretion, as Lender shall specify. If Lender consents to having Borrower's taking such action as is described in this Section 8.02
(b) upon an Event of Default, Borrower shall remain liable for any remaining deficiency between the right to exercise any right or remedy amount of the Company hereunder Obligations and the amount of the principal payment or pledge of additional Collateral made pursuant hereto, and under no circumstances shall Lender's consent to such action be construed as a waiver of such deficiency or a modification of the Merger Agreement or any other document relating to the Secured Obligations, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:.
(i) Apply In the event that Borrower shall hereinafter pledge any cash held by it hereunder;
(ii) Have the right generally to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of additional Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained Lender as specified in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereofSection 8.02(b)(i), Borrower shall, concurrently with such pledge, deliver to Lender an opinion of counsel in form and substance reasonably satisfactory to Lender regarding priority, perfection and the Company will use commercially reasonable efforts to exercise its remedies hereunder absence of Liens in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of DefaultCollateral.
Appears in 1 contract
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (e), (f), (g) or (h) of Section 8.01), terminate its Commitment to make any time Loans hereunder, and declare immediately due and payable all principal, interest and other Obligations payable hereunder and under each Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the UCC, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limitation to the foregoing, such actions may include selling the Collateral in a commercially reasonable manner as determined by Lender, instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default, Borrower shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(i) Without limitation to any of the provisions or remedies set forth in Section 8.02(a), if any Event of Default shall have occurred and be continuing, then, in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured Obligations, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
(ii) Have the right generally to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor Borrower may, with the consent of Lender in Lender's sole discretion, (A) make a principal payment on the Loans in such eventamount as Lender shall specify or (B) pledge additional Collateral having such value, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) Lender in its sole discretion, as Lender shall specify. If Lender consents to satisfy the Secured Obligation(s) that are the subject of Borrower's taking such Event of Default.action as is described in this Section 8.02
Appears in 1 contract
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (f), (g), (h), (i) or (j)), declare immediately due and payable all principal, interest and other Obligations payable hereunder and under the Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any time kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the Code, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement, the Guarantee and the AMC Guarantee and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limiting the generality of the foregoing, if an Event of Default or Other RF Event of Default shall occur and be continuing Lender may sell the Collateral in a commercially reasonable manner as determined by Lender (subject to the limitations set forth in the Pooling and Servicing Agreement), instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default or Other RF Event of Default, Borrower (subject to Section 2.9) and Guarantor shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations and Other RF Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(i) Without limitation to any of the provisions or remedies set forth in Section 8.2(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured ObligationsLender's sole discretion, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply make a principal payment on the Loans in such amount as Lender shall specify or (ii) pledge additional Collateral having such value, as determined by Lender in its sole discretion, as Lender shall specify. If Lender consents to Borrower's taking such action as is described in this Section 8.2(b) upon an Event of Default, Borrower (subject to Section 2.9) and Guarantor shall remain liable for any cash held by it hereunder;remaining deficiency between the amount of the Obligations and the amount of the principal payment or pledge of additional Collateral made pursuant hereto, and under no circumstances shall Lender's consent to such action be construed as a waiver of such deficiency or a modification of the Obligations.
(ii) Have In the right generally event that Borrower shall hereinafter pledge any Collateral in addition to exercise any the Collateral pledged to Lender on the date hereof, Borrower shall, concurrently with such pledge, deliver to Lender an opinion of counsel in form and all rights afforded substance reasonably satisfactory to a secured party under Lender regarding priority, perfection and the applicable Uniform Commercial Code or other applicable law or absence of Liens in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase respect of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each Notwithstanding anything in Section 6.5 to the contrary, it is expressly understood and agreed that Lender shall have sole discretion in determining whether to enforce the covenants set forth in Section 6.5 or immediately to pursue the remedies set forth in this Section 8.2 upon the occurrence of a material adverse change as described in Section 8.1(n). Under no circumstances shall Lender's decision to enforce the covenants set forth in Section 6.5 following such a material adverse change be construed as a waiver of the rightsEvent of Default described in Section 8.1(n), powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor way modify, limit, delay or impair any rights which Lender would otherwise have pursuant to any other notice or demand in similar or other circumstancesthis Section 8.2.
(d) Notwithstanding anything Lender shall use its reasonable efforts to notify Guarantor and AMC upon the contrary contained herein, occurrence of an Event of Default; provided that the Company hereby agrees that, omission so to notify shall not relieve Guarantor or AMC from any liability which it may have to Lender (or extend the period of time within which performance is required by Guarantor or AMC) in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against or from any of its respective obligations under the minimum amount of Collateral reasonably needed (Guarantee or the AMC Guarantee, as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Defaultcase may be.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default the Agent or any time Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (e), (f), (g) or (h) of Section 8.01), terminate its Commitment to make any Loans hereunder, and declare immediately due and payable all principal, interest and other Obligations payable hereunder and under each Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, the Agent and the Lenders may exercise all rights and remedies of a secured party under the UCC, and, to the extent permitted by law, all other rights and remedies granted to the Agent or any Lender in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limitation to the foregoing, such actions may include selling the Collateral in a commercially reasonable manner as determined by the Agent for the benefit of the Lenders, instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If the Agent for the benefit of the Lenders opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default, Borrower shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by the Agent or any Lender to collect such deficiency.
(i) Without limitation to any of the provisions or remedies set forth in Section 8.02(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, in addition to having with the right to exercise any right or remedy consent of the Company hereunder or under Agent and each Lender in their respective sole discretion, (A) make a principal payment on the Merger Agreement or any other document relating to the Secured Obligations, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
(ii) Have the right generally to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or Loans in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms amount as the Company may deem commercially reasonableAgent and the Lenders shall specify or (B) pledge additional Collateral having such value, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) Agent and the Lenders in their sole discretion, as the Agent shall specify. If the Agent and the Lenders consent to satisfy the Secured Obligation(s) that are the subject of Borrower’s taking such Event of Default.action as is described in this Section 8.02
Appears in 1 contract
Remedies of Default. (a) If at any time an Event of Default shall have occurred and be continuing, then, in addition to having the right to exercise any right or remedy of the Company hereunder or a Secured Parties upon default under the Merger Agreement or any other document relating Uniform Commercial Code as then in effect in the jurisdiction in which the Collateral is held by Security Agent, Security Agent shall, if directed to the do so by Secured Obligations, the Company shallParties, to the extent permitted by law, without being required to give any notice to Pledgor except, except as provided below:
(i) Apply Collect, receive, appropriate and realize upon the Collateral or any cash held part thereof, and/or, if so directed by it hereunderSecured Parties, retain the Collateral and deliver the Collateral to the Secured Parties for the ownership of the Secured Parties;
(ii) Have Collect, receive, appropriate and realize upon the right generally Collateral or any part thereof, and/or, if so directed by the Secured Parties, sell, assign, contract to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell sell or otherwise dispose of or realize upon and deliver the Collateral, Collateral or any part thereof, in one its entirety or more parcelsin portions, at public or private sale, sale or at any broker's board, on any securities exchange or broker’s board at any of Security Agent's places of business or elsewhere, for cash, upon credit or for future delivery, and at such price or prices as Security Agent may deem best, and on Security Agent or Secured Parties may (except as otherwise provided by law) be the purchaser of any or all of the Collateral so sold and thereafter may hold the same, absolutely, free from any right or claim of whatsoever kind. In the event of a sale as aforesaid, Security Agent is authorized to, at any such sale, if it deems it advisable so to do, restrict the number of prospective bidders or purchasers and/or further restrict such prospective bidders or purchasers to persons who will represent and agree that they are purchasing for their own account, for investment, and not with a view to the distribution or resale of the Collateral, and may otherwise require that such sale be conducted subject to restrictions as to such other terms matters as the Company Security Agent may deem commercially reasonablenecessary in order that such sale may be effected in such manner as to comply with all applicable state and federal securities laws. Upon any such sale, Security Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Pledgor hereby acknowledges that, notwithstanding that a higher price might be obtained for cashthe Collateral at a public sale than at a private sale or sales, credit or for future delivery or otherwise the making of a public sale of the Collateral may be subject to registration requirements under applicable securities laws and similar other legal restrictions compliance with which would require such actions on the part of Pledgor, would entail such expenses, and would subject Security Agent, any underwriter through whom the Collateral may be sold and any controlling person of any of the foregoing to such liabilities, as would make a public sale of the Collateral impractical. Accordingly, Pledgor hereby agrees that private sales made by Security Agent in good faith in accordance with the provisions of this Section 5(a) may be at prices and on other terms less favorable to the seller than if the Collateral were sold at public sale, and that Security Agent shall not have any obligation to take any steps in order to permit the Collateral to be sold at public sale, a private sale being considered or deemed to be a sale in a commercially reasonable manner. Pledgor also hereby acknowledges that any private sale of the Collateral may be subject to compliance with federal and state securities laws. In the event that the applicable lawrequirements under the Securities Act of 1933 cannot be satisfied at the time of a proposed sale of the Collateral by Security Agent, Pledgor hereby agrees to substitute for the Collateral other property owned by the Pledgor, free and clear of all Encumbrances, of at least equal value as the Collateral as of the date of such proposed sale. To Each purchaser at any such sale shall hold the extent permitted by applicable lawproperty sold, the absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor, who hereby specifically waives all rights of redemption, stay or appraisal which Pledgor mayhas or may have under any rule of law or statute now existing or hereafter adopted. Security Agent shall give Pledgor not less than five (5) days' written notice of its intention to make any such public or private sale. Such notice, in such eventcase of a public sale, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or state the time after and place fixed for such sale, and, in case of a sale at broker's board, on a securities exchange, at one or more of Security Agent's places of business or elsewhere, shall state the board, exchange or other location at which any private such sale is to be mademade and the day on which the Collateral, is personally served or that portion thereof so being sold, will first be offered for sale at such location. Such notice, in case of a private sale, shall state only the date on or mailed, postage prepaid, after which such sale may be made. Any such notice given as aforesaid shall be deemed to be reasonable notification. Any such Pledgor, public sale shall be held at such time or times within ordinary business hours and at such place or places as Security Agent may fix in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company At any sale the Collateral may be sold in one lot as an entirety or in parts, as Security Agent may determine. Security Agent shall not be obligated to make any sale of Collateral pursuant to the Pledgor regardless of any such notice. Security Agent may, without notice of sale having been given. The Company may or publication, adjourn any public sale or private sale cause the same to be adjourned from time to time by announcement at the time and place fixed thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned.
. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Security Agent until the selling price is paid by the purchaser thereof, but neither the Security Agent nor Secured Parties shall incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Security Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose its lien or security interest arising from this Agreement and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Upon the occurrence of an Event of Default, Security Agent or his nominee shall have the right, upon not less than one (b1) The Pledgor recognizes that day's notice to Pledgor, to exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any shares of the Collateral as if it were the absolute owner thereof, including, without limitation, the right to exchange, at its discretion, any or all of the Collateral upon the merger, consolidation, reorganization, recapitalization or other readjustment of the Company, or upon the exercise by the Company of any right, privilege or option pertaining to any such shares of the Collateral, and, in connection therewith, to deposit and deliver any and all of the Collateral with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as Security Agent may determine. On any sale of the Collateral, Security Agent is hereby authorized to comply with any limitation or restriction in connection with such sale that it may be unable advised by counsel is necessary in order to effect a public sale avoid any violation of applicable law or in order to obtain any required approval of the purchaser or purchasers by any governmental regulatory authority or officer or court. It is expressly understood and agreed by Pledgor that Security Agent may proceed against all or any portion or portions of the Collateral by reason and all other collateral securing the Secured Obligations in such order and at such time as Security Agent, in his sole discretion, sees fit; and Pledgor hereby expressly waives any rights under the doctrine of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group marshalling of purchasers that assets. Compliance with the foregoing procedures shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be or disposition being considered or deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Default.
Appears in 1 contract
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (f), (g), (h), (i) or (j)), declare immediately due and payable all principal, interest and other Obligations payable hereunder and under the Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any time kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the Code, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement, the Guarantee and the AMC Guarantee and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limiting the generality of the foregoing, if an Event of Default or Other RF Event of Default shall occur and be continuing Lender may sell the Collateral in a commercially reasonable manner as determined by Lender (subject to the limitations set forth in the Pooling and Servicing Agreement), instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default or Other RF Event of Default, Borrower and Guarantor shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations and Other RF Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(i) Without limitation to any of the provisions or remedies set forth in Section 8.2(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured ObligationsLender's sole discretion, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
make a principal payment on the Loans in such amount as Lender shall specify or (ii) Have the right generally to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateralpledge additional Collateral having such value, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do so.
(c) Each of the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) Lender in its sole discretion, as Lender shall specify. If Lender consents to satisfy the Secured Obligation(s) that are the subject of Borrower's taking such Event of Default.action as is described in this Section 8.2
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Remedies of Default. (a) If at not cured within the cure period, if any, provided within the relevant provision, then upon the continuance of such Event of Default Lender may, by notice to Borrower (which notice shall be deemed given automatically upon occurrence of an Event of Default referred to in paragraph (f), (g), (h), (i) or (j)), terminate its commitment to make any time Loans hereunder and/or declare immediately due and payable all principal, interest and other Obligations payable hereunder and under the Promissory Note by Borrower then due and payable that would otherwise be due after the date specified in the notice (or the date such notice is deemed given), whereupon all those amounts shall become immediately due and payable, all without further diligence, presentment, demand of payment, protest or notice of any kind, all of which are expressly waived by Borrower. If any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies of a secured party under the Code, and, to the extent permitted by law, all other rights and remedies granted to Lender in this Agreement, the Guarantee and the AMC Guarantee and in any other instrument or agreement securing, evidencing or relating to the Obligations. Without limiting the generality of the foregoing, if an Event of Default or Other RF Event of Default shall occur and be continuing Lender may sell the Collateral in a commercially reasonable manner as determined by Lender (subject to the limitations set forth in the Trust Agreement), instituting suit in equity or instituting other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law. If Lender opts to sell or otherwise dispose of the Collateral as one of its remedies upon an Event of Default or Other RF Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency upon applying the proceeds of such sale or other disposition against any and all Obligations and Other RF Obligations, including, without limitation, the reasonable fees and disbursements of any attorneys employed by Lender to collect such deficiency.
(b) Without limitation to any of the provisions or remedies set forth in Section 8.2(a), if any Event of Default shall have occurred and be continuing, thenBorrower may, with the consent of Lender in addition to having the right to exercise any right or remedy of the Company hereunder or under the Merger Agreement or any other document relating to the Secured ObligationsLender's sole discretion, the Company shall, to the extent permitted by law, without being required to give any notice to Pledgor except, as provided below:
(i) Apply any cash held by it hereunder;
make a principal payment on the Loans in such amount as Lender shall specify or (ii) Have pledge additional Collateral having such value, as determined by Lender in its sole discretion, as Lender shall specify. If Lender consents to Borrower's taking such action as is described in this Section 8.2(b) upon an Event of Default, Borrower (subject to Section 2.10) and Guarantor shall remain liable for any remaining deficiency between the right generally amount of the Obligations and the amount of the principal payment or pledge of additional Collateral made pursuant hereto, and under no circumstances shall Lender's consent to exercise any and all rights afforded to such action be construed as a secured party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase waiver of such Collateral. The Pledgor agrees that, to deficiency or a modification of the extent notice of sale shall be required by applicable law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do soObligations.
(c) Each of In the rights, powers, and remedies provided herein or now or hereafter existing at law or in equity or by statute or otherwise event that Borrower shall be cumulative and concurrent and shall be hereinafter pledge any Collateral in addition to every other rightthe Collateral pledged to Lender on the date hereof, power or remedy provided for herein or therein or now or hereafter existing at law or Borrower shall, concurrently with such pledge, deliver to Lender an opinion of counsel in equity or by statute or otherwise. The exercise form and substance reasonably satisfactory to Lender regarding priority, perfection and the absence of any Liens in respect of such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstancesCollateral.
(d) Notwithstanding anything in Section 6.5 to the contrary contained hereincontrary, it is expressly understood and agreed that Lender shall have sole discretion in determining whether to enforce the Company hereby agrees that, covenants set forth in connection with any Section 6.5 or immediately to pursue the remedies set forth in this Section 8.2 upon the occurrence of a material adverse change as described in Section 8.1(n). Under no circumstances shall Lender's decision to enforce the covenants set forth in Section 6.5 following such a material adverse change be construed as a waiver of the Event of Default that occurs prior to the termination of the Merger Agreement (and is not described in respect of any claim to pay the Secured Obligation referred to in clause (i) of the definition thereofSection 8.1(n), the Company will use commercially reasonable efforts or otherwise in any way modify, limit, delay or impair any rights which Lender would otherwise have pursuant to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Defaultthis Section 8.2.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Remedies of Default. (a) If at any time an Event of Default The Repurchase Date for each Transaction hereunder shall have occurred be deemed immediately to occur and, subject to the following provisions, all Margin Amounts (including interest accrued) shall be immediately repayable and the Additional Purchased Securities shall be continuingimmediately delivered (and so that, thenwhere this sub-clause applied, in addition to having the right to exercise any right or remedy performance of the Company hereunder or under respective obligations of the Merger Agreement or any other document relating parties with respect to the Secured Obligationsdelivery of Securities, the Company shall, to payment of the extent permitted by law, without being required to give Repurchase Price for any notice to Pledgor except, as provided Equivalent Securities or Additional Purchased Securities and the repayment of any Amount Margin shall be effected only in accordance with the provisions of sub-clause (b) below:
(i) Apply The Default Market Value of the Equivalent Securities or Additional Purchased Securities to be transferred, the amount of any cash held Margin (including the amount of interest accrued) to be transferred and the Repurchase Prices to be paid by it hereunder;each party shall be established by the non-Defaulting Party for all Transactions at the Repurchase Date; and
(ii) Have On the right generally to exercise any and all rights afforded to a secured basis of the sums so established, an account shall be taken (as at the Repurchase Date) of what is due from each party under the applicable Uniform Commercial Code or other applicable law or in equity; and
(iii) Sell or otherwise dispose of or realize upon the Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Company may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with applicable law. To the extent permitted by applicable law, the Pledgor may, in such event, bid for the purchase of such Collateral. The Pledgor agrees that, to the extent notice other under this Agreement (on the basis that each party’s claim against the other in respect of sale the transfer to it of Equivalent Securities or Additional Purchased Securities under this Agreement equals the Default Market Value therefore) and the sums due from one party shall be required by applicable law set off against the sums due from the other and has not been waived by such Pledgor, any requirement only the balance of reasonable notice the account shall be met if notice, specifying payable (by the place of any public sale or party having the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with claim valued at the notice provisions of Section 12 of this Agreement at least ten (10) days before the time of such sale. The Company shall not be obligated to make any sale of Collateral lower amount pursuant to the Pledgor regardless of notice of sale having been given. The Company may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, foregoing) and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) The Pledgor recognizes that the Company may be unable to effect a public sale of any Collateral by reason of certain prohibitions contained in applicable federal, state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that balance shall be obliged to agree, among other things, to acquire such Collateral for their own account for investment due and not with a view to payable on the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Company shall be under no obligation to delay a sale of any Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the applicable federal, state or foreign securities laws even if such issuer would agree to do sonext following Business Day.
(c) Each For the purpose of the rights, powers, and remedies provided herein this Agreement. The “Default Market Value” of any Equivalent Securities or now or hereafter existing at law or in equity or by statute or otherwise Additional Purchased Securities shall be cumulative and concurrent and shall be determined in addition to every other right, power or remedy provided for herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. The exercise of any such right, power or remedy shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies, including under the Merger Agreement and Limited Guarantee, except there shall be no duplication of recovery. No notice to or demand on Pledgor in any case shall entitle Pledgor to any other notice or demand in similar or other circumstances.
(d) Notwithstanding anything to the contrary contained herein, the Company hereby agrees that, in connection accordance with any Event of Default that occurs prior to the termination of the Merger Agreement (and is not in respect of any claim to pay the Secured Obligation referred to in sub-clause (ie) of the definition thereof), the Company will use commercially reasonable efforts to exercise its remedies hereunder in respect of such Event of Default against the minimum amount of Collateral reasonably needed (as determined by the Company) to satisfy the Secured Obligation(s) that are the subject of such Event of Default.below and for this purpose –
Appears in 1 contract
Samples: Master Repurchase Agreement
