REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required). (b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equity, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Parties, without demand of performance or other demand, (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled. (c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 8 contracts
Samples: Loan Agreement (Itec Environmental Group Inc), Loan Agreement (Itec Environmental Group Inc), Loan Agreement (Itec Environmental Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared continuing, the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise (in addition to all other rights and remedies granted to it in this Security Agreement or in any other instrument or agreement securing, evidencing or relating Agreement) after thirty (30) days notice to the Obligations or at law or in equity, all rights IXC (and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Parties, without demand of performance or other demand, (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person ), may forthwith collect, receive, appropriate and realize upon the Collateral, Collateral or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), as the case may be, or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ Party's offices or elsewhere at such prices as it may deem bestbest (subject to Section 2.2 and the last sentence of this Section 5), for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, sales to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply pay over the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties Party hereunder, including reasonable attorneys' fees and legal expenses, for application on an equal basis to the payment in whole or in part of the Secured Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by need the Secured Parties of any other amount required by any provision of lawParty account for the surplus, if any, to IXC. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company IXC agrees that a neither Secured Party need not needs to give more than 10 days thirty (30) days' notice (which notification shall be deemed given when mailed, postage prepaid, addressed to IXC at its address provided pursuant to this Security Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for Secured Party's exercise of the foregoing rights and remedies is subject to the provisions of Section 2.2 and any deficiency if transferee (including the proceeds Secured Party) of any sale or disposition of the Collateral are insufficient must agree to pay all amounts to which a Secured Party is entitledbe bound by such provisions.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 6 contracts
Samples: Iru and Stock Purchase Agreement (Psinet Inc), Iru and Stock Purchase Agreement (Psinet Inc), Iru and Stock Purchase Agreement (Psinet Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in and any of the other Loan Documents, and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Secured Party may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesParty (i) may give notice of sole control or any other instruction permitted under each account control agreement entered into pursuant to Section 4(b) and take any action permitted by the terms thereof with respect to the Collateral, and (ii) without demand demand, notice of performance or other demand, (except the advertisement or notice specified below of time and place of public or private sale) any kind to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on the Secured Party’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or salessales (provided, notice thereof shall be provided to Grantor, pursuant to Section 9 hereof, if required thereunder), at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time (and notice thereof shall be provided to Grantor). The Company Secured Party shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as the Secured Party deems necessary or advisable. Grantor acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private.
(b) Grantor further agrees, after the occurrence of an Event of Default, at any the Secured Party’s request, to assemble the Collateral, Collateral and all books and records relating thereto (the “Books and Records”) and make it available to one or more of the Secured Parties Party at places which a the Secured Party shall reasonably select, whether at the Company's Grantor’s premises or elsewhereelsewhere and, permit the Secured Party, by the Secured Party’s representatives and agents, to enter, occupy and use any premises where all or any part of the 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 the Books and Records relating thereto, or both, and to conduct sales of the Collateral, without any obligation to pay Grantor for such use and occupancy. Until the Secured Party is able to effect such a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Party. The Secured Parties Party shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Secured Party. The Secured Party may, if it so elects, seek the appointment of a receiver or keeper (each, a “Receiver”) to take possession of Collateral and to enforce any of the Secured Party’s remedies, without prior notice or hearing as to such appointment. The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against need the Secured Parties arising out of Party account for the repossessionsurplus, retention or sale of the Collateralif any, to Grantor. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any attorneys’ fees and other expenses incurred by the Secured Party is entitledto collect such deficiency.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 5 contracts
Samples: Cryptocurrency Security Agreement, Cryptocurrency Security Agreement, Cryptocurrency Security Agreement
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Note, and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equity(but subject to the terms of such instruments of agreements), if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except to the extent that such arise out of the gross negligence or willful misconduct of Agent or such Lender as determined by a final non-appealable judgment of a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent so long as an Event of Default shall have occurred and be continuing (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder shall be cumulative. To the extent it may lawfully do so, Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 5 contracts
Samples: Security Agreement (Kahn Jonathan Efrem), Security Agreement (Kahn Jonathan Efrem), Security Agreement (Agritech Worldwide, Inc.)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition Subject to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any Article 10 of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company Indenture: (duly endorsed by the Company to the Secured Parties, if required).
(bi) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Indenture, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise all rights and remedies of a secured party under the Code. Without ; (ii) without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesCollateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on the Collateral Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each ; (iii) the Trustee, the Collateral Agent or any present or future Holder of Secured Party Obligations shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the present and future Holders of Secured Obligations, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company ; (iv) such sales may be adjourned and continued from time to time with or without notice; (v) the Collateral Agent shall have the right to conduct such sales on the Grantor's premises or elsewhere and shall have the right to use the Grantor's premises without charge for such time or times as the Collateral Agent deems necessary or advisable; (vi) if any Event of Default shall have occurred and be continuing, the Grantor further agrees, at any Secured Party’s the Collateral Agent's request, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and the Grantor, whether at the CompanyGrantor's premises or elsewhere. The Secured Parties shall apply ; (vii) until the net proceeds of any such collection, recovery, receipt, appropriation, realization or Collateral Agent is able to effect a sale, after deducting all reasonable costs and expenses lease, or other disposition of every kind incurred therein Collateral, the Collateral Agent shall have the right to hold or incidental use Collateral, or any part thereof, to the care, safe keeping extent that it deems appropriate for the purpose of preserving Collateral or otherwise of its value or for any or all of other purpose deemed appropriate by the Collateral Agent; (viii) the Collateral Agent shall have no obligation to the Grantor to maintain or in any way relating to preserve the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, Grantor as against third parties with respect to Collateral while Collateral is in the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition possession of the Collateral are insufficient Agent; (ix) the Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to pay all amounts take possession of Collateral and to which a enforce any of the Collateral Agent's remedies (for the benefit of the present and future Holders of Secured Party is entitled.
(c) The Company hereby waives presentmentObligations), demand, protest or any notice (with respect to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.such appointment
Appears in 4 contracts
Samples: Security Agreement (H&e Equipment Services LLC), Security Agreement (H&e Equipment Services LLC), Security Agreement (H&e Equipment Services LLC)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations or at law or in equitypursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Agent or the other Secured Party Parties receive payment, and if the buyer defaults in payment, the Agent may resell the Collateral without further notice to any Grantor. The Agent or any of the other Secured Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s requestrequest following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of the Collateral, the Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Agent or marshal any Collateral for the benefit of any Person. In the event the Agent seeks to take possession of all or any portion of the Collateral by judicial process, each Grantor irrevocably waives (i) any demand for possession prior to the commencement of any suit or action to recover the Collateral and (ii) any requirement that the Agent retain possession and not dispose of any Collateral until after trial or final judgment. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of the Collateral and to enforce any of the Agent’s remedies (for the benefit of the Agent and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting sale to the Secured Obligations first to all reasonable costs and expenses of every kind incurred therein collection, recovery, receipt, appropriation, realization or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereundersale, including reasonable attorneys' fees ’ fees, and legal expenses, to then as provided in the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to the applicable Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Agent or any of the other Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence, bad faith or willful misconduct of the Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 days days’ prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses (to which a the extent provided for herein or in the Credit Agreement) incurred by the Agent or any of the other Secured Party is entitledParties to collect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to the Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of the Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on the Collateral or to remove Liens on or any adverse claims against the Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of the Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of the Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of the Collateral or to provide to the Agent a guaranteed return from the collection or disposition of the Collateral, (xii) to dispose of Leases, Inventory and related Collateral in one or more portfolio sales or in individual sale transactions, or (xiii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 20(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 20(d). Without limitation upon the foregoing, nothing contained in this Section 20(d) shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 20(d).
Appears in 3 contracts
Samples: u.s. Security Agreement (United Rentals North America Inc), u.s. Security Agreement, u.s. Security Agreement (United Rentals North America Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Related Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityLiabilities, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as Agent deems necessary or advisable. Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party Agent shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies, with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Liabilities as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Liabilities, including any attorneys' fees and other expenses incurred by Agent to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 3 contracts
Samples: Security Agreement (Platinum Entertainment Inc), Security Agreement (Gibraltar Packaging Group Inc), Security Agreement (Gibraltar Packaging Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunderIf, if after applicable notice and cure periods, an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automaticallycontinuing, become due and payable)Lender may exercise, all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement, the Credit Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityOutstanding Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoingforgoing, the Company Debtor expressly agrees that in any such event, the Secured Partiesevent Lender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtor or any person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other person applicable law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or on contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of the Secured Parties’ Lender’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which right or equity of redemption the Company Debtor hereby releases. The Company Debtor further agrees, at any Secured PartyLender’s request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Lender at places which a Secured Party Lender shall reasonably select, whether at the Company's Debtor’s premises or elsewhere. The Secured Parties Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or as provided in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining Section 16(d) hereof. Debtor shall remain liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Lender of any other amount required by any provision of law, need Lender account for the surplus, if any, to Debtor. To the maximum extent permitted by applicable law, the Company Debtor waives all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or wilful misconduct of Lender. The Company Debtor agrees that a Secured Party Lender need not give more than 10 days 15 days’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for .
(b) In addition to, and not in limitation of, Lender’s rights pursuant to Section 14(a) hereof, but at all times subject to the AR Lien, Lender may at any deficiency if time, upon the proceeds occurrence of any sale Event of Default (whether or disposition not waived), after first giving three days’ notice of the Collateral are insufficient its intention to pay do so, open Debtor’s mail and collect any and all amounts due from Account Debtors and notify Account Debtors of Debtor, parties to which the Contracts of Debtor, holders of all Deposit Accounts, obligors of Instruments of Debtor and obligors in respect of Chattel Paper of Debtor that the Accounts and the right, title and interest of Debtor in and under such Contracts, such Instruments, such Deposit Accounts and such Chattel Paper have been assigned to Lender and that payments shall be made directly to Lender or to a Secured Party is entitledlockbox designated by Lender. Upon request of Lender, Debtor will so notify such Account Debtors, parties to such Contracts, holders of such Deposit Accounts, and Instruments and obligors in respect of such Chattel Paper. In addition, Lender may enforce payment of any Accounts (subject to the AR Lien), Contracts, Instruments, and Chattel Paper, prosecute any action or proceeding with respect thereto, extend the time of payment thereof, make allowances and adjustments with respect thereto, and issue credits against the same, all in the name of Lender or Debtor, and settle, compromise, extend, renew, release, terminate or discharge, in whole or in part, any Account, Contract, Instrument or Chattel Paper, all as Lender may deem advisable.
(c) The Company Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Lender in the following order of priorities: first, to Lender in an amount sufficient to pay in full the reasonable expenses of Lender in connection with such sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by Lender in connection therewith, including reasonable attorney’s fees, reasonable paralegal charges and court costs (including for appeals); second, to Lender, for the benefit of the Lender, in an amount equal to the then unpaid Outstanding Obligations; and finally, upon payment in full of all of the Outstanding Obligations, to pay to Debtor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
(e) If any Event of Default shall have occurred and be continuing, upon the written demand of Lender, Debtor shall execute and deliver to Lender an assignment or assignments of the registered Trademarks and such other documents as are necessary or appropriate to carry out the intent and purposes of this Security Agreement. Within five Business Days of written notice thereafter from Lender, Debtor shall make available to Lender, to the extent within Debtor’s power and authority, such personnel in Debtor’s employ on the date of the Event of Default as Lender may reasonably designate to permit Debtor to continue, directly or indirectly, to produce, advertise, and sell the products and services sold by Debtor under the registered Trademarks, and such persons shall be available to perform their prior functions on Lender’s behalf.
Appears in 3 contracts
Samples: Security Agreement (Frankly Inc), Security Agreement (Frankly Inc), Security Agreement (Frankly Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Related Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations Liabilities or at law or in equitythe Guaranty Indebtedness, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as Agent deems necessary or advisable. Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party Agent shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies, with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Guaranty Indebtedness as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationGuaranty, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Guaranty Indebtedness, including any attorneys' fees and other expenses incurred by Agent to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 3 contracts
Samples: Security Agreement (Gibraltar Packaging Group Inc), Security Agreement (Gibraltar Packaging Group Inc), Security Agreement (Gibraltar Packaging Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Agent deems necessary or advisable.
(b) Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vii) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (viii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (ix) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (x) to dispose of assets in wholesale rather than retail markets, (xi) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xii) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xiii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Grantor acknowledges that the purpose of this Section 23(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 23(d). Without limitation upon the foregoing, nothing contained in this Section 23(d) shall be construed to grant any rights to Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 23(d).
Appears in 3 contracts
Samples: Security Agreement, Security Agreement (Spansion Inc.), Security Agreement (Advanced Micro Devices Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) . If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equity, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Parties, without demand of performance or other demand, (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) . The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 3 contracts
Samples: Loan Agreement (Itec Environmental Group Inc), Loan Agreement (Itec Environmental Group Inc), Loan Agreement (Itec Environmental Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) a. If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party Lender may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing evidencing, guaranteeing or otherwise relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of that it has as a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Debtor expressly agrees that in any such event, the Secured Partiesevent Lender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private salesale and any notice expressly required by the Guaranty Agreement) to or upon the Company Debtor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Debtor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Debtor notice and opportunity for a hearing on Lender's claim or action, and without paying rent to Debtor, and collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Lender shall have the right upon any such public sale or sales, -10- and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Lender the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Lender shall have the right to conduct such sales on Debtor's premises or elsewhere and shall have the right to use Debtor's premises without charge for such time or times as Lender reasonably deems necessary or advisable. Debtor further agrees, at any Secured Party’s Lender's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Lender at places which a Secured Party Lender shall reasonably select, whether at the CompanyDebtor's premises or elsewhere. The Secured Parties Until Lender is able to effect a sale, lease, or other disposition of Collateral, Lender shall have the right to use, operate or administer Collateral on behalf of Lender, or any part thereof, to the extent that it reasonably deems appropriate for the purpose of preserving Collateral or its value or for any other purpose reasonably deemed appropriate by Lender. Lender shall have no obligation to Debtor to maintain or preserve the rights of Debtor as against third parties with respect to Collateral while Collateral is in the possession of Lender. Lender may, if it so elects and, to the extent not prohibited by applicable law, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Lender's remedies with respect to such appointment without prior notice or hearing. Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or salesale as provided in Section 8(d) hereof, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company Debtor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Lender of any other amount required by any provision of law, including section 9-504(1)(c) of the UCC (but only after Lender has received what Lender considers reasonable proof of a subordinate party's security interest), need Lender account for the surplus, if any, to Debtor. To the maximum extent permitted by applicable law, the Company Debtor waives all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the CollateralCollateral except to the extent that a court of competent jurisdiction issues a final determination that such claims or damages arise solely out of the gross negligence or willful misconduct of such party. The Company Debtor agrees that a Secured Party need not give more than 10 days ten (10) days' prior notice by Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party Lender is entitled, Debtor also being liable for any reasonable attorneys' fees incurred by Lender to collect such deficiency.
(c) The Company b. Debtor agrees to pay any and all reasonable costs of Lender, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
c. Except as otherwise specifically provided herein or in the Loan Documents, Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this the Loan Documents, the Security Agreement or any Collateral.
d. The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Lender upon receipt, in the following order of priorities: -11- first, to Lender in an amount sufficient to pay in full the reasonable expenses of Lender in connection with such sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by Lender in connection therewith, including reasonable attorney's fees; second, to Lender in an amount equal to the then due and unpaid accrued interest, fees and prepayment premiums, if any, on the Secured Obligations; third, to Lender in an amount equal to any other unpaid Secured Obligations or amounts owed, if any, in connection with the Secured Obligations; and finally, upon payment in full of all of the Secured Obligations, to Debtor or its representatives or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
Appears in 2 contracts
Samples: Security Agreement (Vodavi Technology Inc), Security Agreement (Vodavi Technology Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Merger Agreement, the Notes and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Secured Parties may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company LCLX expressly agrees agrees, on behalf of itself and its Affiliates, that in any such event, event the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company LCLX or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of LCLX or its relevant Affiliate where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving LCLX or any other Person notice and opportunity for a hearing on the Secured Parties’ claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may reasonably deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company LCLX, on behalf of itself and its Affiliates, hereby releases. In addition, the Secured Parties shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to bid for all or any part of the Collateral, free of any right or equity of redemption, which equity of redemption LCLX on behalf of itself and its Affiliates hereby releases, and the amount of any such bid need not be paid by the Secured Parties but shall be credited against the Secured Obligations. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Parties shall have the right to conduct such sales on the premises of LCLX or its relevant Affiliates or elsewhere and shall have the right to use such Person’s premises without charge for such time or times as the Secured Parties may deem necessary or advisable.
(b) LCLX further agrees, on behalf of itself and its Affiliates, that upon the occurrence and during the continuation of an Event of Default, at any Secured Partythe Collateral Agent’s request, to it will assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Collateral Agent at places which a Secured Party the Collateral Agent shall reasonably select, whether at the Company's LCLX’s premises or elsewhereelsewhere for sale, lease, or other disposition. Until the Collateral Agent is able to effect such a sale, lease, or other disposition of Collateral, the Secured Parties shall have the right to hold or use Collateral, or any part thereof, to the extent that they deem appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Parties. Subject to Section 15 herein below, the Secured Parties shall have no obligation to LCLX or any of its Affiliates to maintain or preserve the rights of any of them as against third parties with respect to Collateral while Collateral is in the possession of the Secured Parties. The Secured Parties may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties’ remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees Merger Agreement and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNotes, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties of any other amount required by any provision of law, leave the surplus, if any, to LCLX. To the maximum extent permitted by applicable law, the Company LCLX waives on behalf of itself and its Affiliates all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Secured Parties. The Company LCLX agrees on behalf of itself and its Affiliates that a Secured Party need not give more than 10 ten (10) days prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company LCLX shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses incurred by the Secured Parties to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, LCLX, on behalf of itself and its Affiliates, hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 2 contracts
Samples: Security Agreement (SearchCore, Inc.), Security Agreement (General Cannabis, Inc.)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Purchase Agreement, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Secured Parties may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through selfhelp, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on the Secured Parties' claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Parties shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as the Secured Parties deems necessary or advisable.
(b) Grantor further agrees, at any the Secured Party’s Parties' request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a the Secured Party Parties shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. Until the Secured Parties are able to effect a sale, lease, or other disposition of Collateral, the Secured Parties shall have the right to hold or use Collateral, or any part thereof, to the extent that deemed appropriate by the Secured Parties for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Parties. The Secured Parties shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Secured Parties. The Secured Parties may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties' remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale ratably to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationPurchase Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties of any other amount required by any provision of law, need the Secured Parties account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against any of the Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Secured Parties or any of the Secured Parties as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a ten (10) days prior notice by the Secured Party need not give more than 10 days notice Parties of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by any of the Secured Parties to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The provisions of this Section are subject to the provisions of Section 26.
Appears in 2 contracts
Samples: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Concepts Direct Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations or at law or in equitypursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodePPSA or STA. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the PPSA or STA), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Agent or the other Secured Party Parties receive payment, and if the buyer defaults in payment, the Agent may resell the Collateral without further notice to any Grantor. The Agent or any of the other Secured Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s requestrequest following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of the Collateral, the Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Agent. The Secured Parties Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Agent or marshal any Collateral for the benefit of any Person. In the event the Agent seeks to take possession of all or any portion of the Collateral by judicial process, each Grantor irrevocably waives (i) any demand for possession prior to the commencement of any suit or action to recover the Collateral and (ii) any requirement that the Agent retain possession and not dispose of any Collateral until after trial or final judgment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Secured Obligations first to all expenses of collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees legal fees, and legal expenses, to then as provided in the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to the applicable Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Agent or any of the other Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence, bad faith or willful misconduct of the Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 days days’ prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any legal fees or other expenses (to which a the extent provided for herein or in the Credit Agreement) incurred by the Agent or any of the other Secured Party is entitledParties to collect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to the Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of the Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on the Collateral or to remove Liens on or any adverse claims against the Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of the Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of the Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of the Collateral or to provide to the Agent a guaranteed return from the collection or disposition of the Collateral, (xii) to dispose of Leases, Inventory and related Collateral in one or more portfolio sales or in individual sale transactions, or (xiii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 20(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 20(d). Without limitation upon the foregoing, nothing contained in this Section 20(d) shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 20(d).
(e) Each Grantor hereby acknowledges that the Secured Obligations arise out of a commercial transaction, and agrees that if an Event of Default shall occur and be continuing the Agent, if it so elects, shall have the right to seek the appointment of a receiver, interim receiver, receiver-manager, or a receiver and manager or keeper (each a “Receiver”) to take possession of Collateral and to enforce any of the Agent’s remedies, or may institute proceedings in any court of competent jurisdiction for the appointment of such Receiver and each Grantor hereby consents to such rights and such appointment and hereby waives any objection such Grantor may have thereto or the right to have a bond or other security posted by the Agent. Any such Receiver shall have the same powers and rights and exclusions and limitations of liability as the Agent has under this Agreement, at law or in equity. To the extent permitted by applicable law, any Receiver appointed by the Agent shall (for purposes relating to responsibility for the Receiver’s acts or omissions) be considered to be the agent of any such Grantor and not of the Agent. The Agent may from time to time fix the Receiver’s remuneration and the Grantors shall pay the amount of such remuneration to the Agent. The Agent may appoint one or more Receivers hereunder and may remove any such Receiver or Receivers and appoint another or others in his or their stead from time to time. Any Receiver so appointed may be an officer or employee of the Agent. A court need not appoint, ratify the appointment by the Agent, or otherwise supervise in any manner the actions, of any Receiver. Upon a Grantor receiving notice from the Agent of the taking of possession of the Collateral or the appointment of a Receiver, all powers, functions, rights and privileges of each of the directors and officers of the Grantors with respect to the Collateral shall cease, unless specifically continued by the written consent of the Agent.
Appears in 2 contracts
Samples: Canadian Security Agreement (United Rentals North America Inc), Canadian Security Agreement (United Rentals North America Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Purchase Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations Obligations, if any Event of Default shall have occurred and be continuing, Secured Party shall have the right to exercise any and all rights and remedies provided for in any Loan Document, under the UCC or at law or in equity, including, without limitation, the right to (i) apply any Property of Debtor held by Secured Party, for the benefit of Secured Party and the Lenders, or any Lender to reduce the Obligations, (ii) foreclose the Liens created under the Loan Documents, (iii) realize upon, take possession of and/or sell or otherwise transfer any Collateral, with or without judicial process, (iv) exercise all rights and remedies of a secured party under powers with respect to the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Parties, without demand of performance or other demandCollateral as Debtor might exercise, (except the notice specified below of time v) collect and place of public or private sale) to or upon the Company or any other person may forthwith collect, receive, appropriate and realize upon send notices regarding the Collateral, with or without judicial process, (vi) by its own means or with judicial assistance, enter any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchasepremises at which Collateral is located, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at render any of the Secured Partiesforegoing unusable or dispose of the Collateral on such premises without any liability for rent, storage, utilities, or other sums, and no Debtor shall resist or interfere with such action, (vii) at Debtor’ offices or elsewhere at such prices as it may deem bestexpense, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole require that all or any part of said the Collateral so soldbe assembled and made available to Secured Party at any place designated by Secured Party in its Permitted Discretion, free (viii) reduce or otherwise change the Facility Cap, and/or (ix) relinquish or abandon any Collateral or any Lien thereon. Any provision of any right or equity of redemptionLoan Document, which equity of redemption to the Company hereby releases. The Company further agreescontrary notwithstanding, Secured Party, in its Permitted Discretion, shall have the right, at any Secured Party’s requesttime that Debtor fails to do so, and from time to assemble the Collateraltime, make it available to one or more without prior notice, to: (i) obtain insurance covering any of the Collateral to the extent required hereunder; (ii) pay for the performance of any of the Obligations; and (iii) discharge taxes, levies and/or Liens on any of the Collateral that are in violation of any Loan Document. Any expenses and advances shall be added to the Obligations until reimbursed to Secured Parties at places which a Party and shall be secured by the Collateral and payable on demand, and such payments by Secured Party shall reasonably select, whether at the Company's premises not be construed as a waiver by Secured Party or elsewhere. The Secured Parties shall apply the net proceeds Lenders of any such collection, recovery, receipt, appropriation, realization Event of Default or any other rights or remedies of Secured Party and Lenders.
(b) The Debtor agrees that notice received at least ten (10) calendar days before the time of any intended public sale, or the time after deducting all which any private sale or other disposition of Collateral is to be made, shall be deemed to be reasonable costs and expenses notice of every kind incurred therein such sale or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of lawdisposition. To the extent If permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention any perishable Collateral which threatens to speedily decline in value or sale of the Collateral. The Company agrees that which is sold on a recognized market may be sold immediately by Secured Party need not give more than 10 days without prior notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such mattersto Debtor. The Company shall remain liable for any deficiency if the proceeds of At any sale or disposition of the Collateral are insufficient to pay all amounts to which a Collateral, Secured Party is entitled.
(c) The Company hereby waives presentment, demand, protest or any notice may (to the extent permitted by applicable law) of any kind in connection with this Security Agreement purchase all or any part thereof free from any right of redemption by the Debtor, which right hereby is waived and released. The Debtor covenants and agrees not to, and not to permit or cause any of its Subsidiaries to, interfere with or impose any obstacle to Secured Party’s exercise of its rights and remedies with respect to the Collateral. In dealing with or disposing of the Collateral or any part thereof, Secured Party and Lenders shall not be required to give priority or preference to any item of Collateral or otherwise to marshal assets or to take possession or sell any Collateral with judicial process.
(c) Secured Party acknowledges and agrees that its rights and remedies pursuant to this Agreement are subject in their entirety to the terms and conditions of that certain Wavier, Consent, and Intercreditor Agreement dated as of the date hereof by and among Secured Party, Shelter Island Opportunity Fund, LLC, and Gulfstream (the “Intercreditor Agreement”). In the event of a conflict between the terms of this Agreement and the Intercreditor Agreement, the terms of the Intercreditor Agreement shall control.
Appears in 2 contracts
Samples: Security Agreement (Gulfstream International Group Inc), Security Agreement (Gulfstream International Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to Upon and after the Secured Parties hereunder, if occurrence and during the continuation of an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equity, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoingDefault, the Company expressly agrees that in any such event, the Secured PartiesAgent may, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Pledgor or any other person may (all of which are, to the extent permitted by law, hereby expressly waived), forthwith collect, receive, appropriate and realize upon the Collateral, Pledged Assets or any part thereof, and/or and may forthwith sell, lease, assign, give option or options to purchaseforthwith, or agree to, sell or otherwise dispose of and deliver said Collateral (or contract to do so), the Pledged Assets or any part thereofthereof or interest therein, in one or more parcels at public or private sale or sales, at any exchange exchange, broker's board or at any of the Secured Parties’ Agent's offices or elsewhere elsewhere, at such prices and on such terms (including, but without limitation, a requirement that any purchaser of all or any part of the Pledged Securities purchase the shares or other interests constituting the Pledged Securities for investment and without any intention to make a distribution thereof) as it may deem best, for cash or on credit credit, or for future delivery without assumption of any credit risk. Each Secured Party shall have , with the right to the Agent or any purchaser to purchase upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, the Pledged Assets free of any right or equity of redemptionredemption in the Pledgor, which right or equity of redemption the Company is hereby releases. expressly waived and released.
(b) The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collectiondisposition or other action by the Agent shall be applied as follows:
(i) First, recovery, receipt, appropriation, realization or sale, after deducting all reasonable to the costs and expenses of every kind incurred therein in connection therewith or incidental thereto or to the care, safe keeping care or otherwise safekeeping of any or all of the Collateral Pledged Assets or in any way relating to the rights of the Secured Parties Agent hereunder, including reasonable attorneys' fees and legal expenses;
(ii) Second, to the satisfaction of the Obligations;
(iii) Third, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount amounts required by any provision applicable law (including, without limitation, Section 9-504(1)(c) of law. To the Uniform Commercial Code as in effect in the State of Florida (the "UCC")); and
(iv) Fourth, to the Pledgor to the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. any surplus proceeds.
(c) The Company agrees that a Secured Party Agent need not give more than 10 days ten days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such place, which notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitledPledgor hereby deems reasonable.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 2 contracts
Samples: Credit Agreement and Pledge Agreement (Florida East Coast Industries Inc), Credit Agreement (Florida East Coast Industries Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Debtors expressly agrees agree that in any such eventevent the Collateral Agent, on behalf of the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtors or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Debtors where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Debtors or any other Person notice and opportunity for a hearing on the Secured Parties’ claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Collateral Agent shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtors hereby releasesrelease. Such sales may be adjourned and continued from time to time with or without notice. The Company Collateral Agent shall have the right to conduct such sales on the Debtors’ premises or elsewhere and shall have the right to use the Debtors’ premises without charge for such time or times as the Collateral Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Debtors further agreesagree, at any Secured Partythe Collateral Agent’s request, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and the Debtors, whether at the Company's Debtors’ premises or elsewhere. Until the Collateral Agent is able to affect a sale, lease, or other disposition of Collateral, the Collateral Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Collateral Agent. The Collateral Agent shall have no obligation to the Debtors to maintain or preserve the rights of the Debtors as against third parties with respect to Collateral while Collateral is in the possession of the Collateral Agent. The Collateral Agent may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties Parties’ or Collateral Agent’s remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote Documents, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need the Collateral Agent account for the surplus, if any, to the Debtors. To the maximum extent permitted by applicable law, the Company waives Debtors hereby waive all claims, damages, and demands against the Secured Parties and the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of such Secured Party or Collateral Agent as finally determined by a court of competent jurisdiction. The Company agrees Debtors agree that a Secured Party need not give more than 10 ten (10) days prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees and other expenses incurred by the Collateral Agent to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Debtors hereby waives waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Secured Parties or the Collateral Agent to exercise remedies in a commercially reasonable manner, the Debtors acknowledge and agree that it is not commercially unreasonable for the Secured Parties or Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Secured Parties or Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Debtors, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Secured Parties and/or the Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Secured Parties a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Collateral Agent in the collection or disposition of any of the Collateral. The Debtors acknowledge that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Parties or Collateral Agent would not be commercially unreasonable in the Secured Parties’ or Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Secured Parties or Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Debtors or to impose any duties on the Secured Parties or Collateral Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 6(c).
(d) The Secured Parties and Collateral Agent shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Debtors, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Secured Parties and Collateral Agent shall not be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Document shall be cumulative. To the extent it may lawfully do so, the Debtors absolutely and irrevocably waive and relinquish the benefit and advantage of, and covenant not to assert against the Secured Parties or the Collateral Agent, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 2 contracts
Samples: Security Agreement (Interpharm Holdings Inc), Security Agreement (Juma Technology Corp.)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition Upon the occurrence of any Event of Default, Agent or Agent’s designee may, at Agent’s option, elect to become the substituted partner in any other rights given Issuer with respect to the Secured Parties hereunder, if an Event of Default Pledged Collateral and Pledgors shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) execute or cause to be due and payable (or such amounts shall have automatically, become due and payable), executed all payments received by the Company under or in connection with any of the Collateral shall be subject documents necessary to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) evidence Agent so becoming substituted partner. If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2occur, any Secured Party Agent or Agent’s designee may exercise in addition to all other rights and remedies granted to it them in this Security Pledge Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Pledgor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Pledged Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of the Secured Parties’ Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. Each Secured Party Pledgor expressly acknowledges that private sales may be less favorable to a seller than public sales but that private sales shall nevertheless be deemed commercially reasonable and otherwise permitted hereunder. In view of the fact that federal and state securities laws and/or other applicable laws may impose certain restrictions on the method by which a sale of the Pledged Collateral may be effected, each Pledgor agrees that upon the occurrence of an Event of Default, Agent may, from time to time, attempt to sell all or any part of the Pledged Collateral by means of a private placement, restricting the prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In so doing, Agent may solicit offers to buy the Pledged Collateral, or any part thereof, for cash, from a limited number of investors deemed by Agent in its judgment, to be financially responsible parties who might be interested in purchasing the Pledged Collateral, and if Agent solicits such offers, then the acceptance by Agent of the highest offer obtained therefrom shall be deemed to be a commercially reasonable method of disposing of the Pledged Collateral. Agent or Agent’s designee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Pledged Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Pledgor hereby releases. The Company Each Pledgor further agrees, at any Secured Party’s requestthe request of Agent, to assemble the Collateral, Pledged Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party Agent shall reasonably select, whether at the Company's such Pledgor’s premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses sale as provided in Section 10(d) of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only this Pledge Agreement. Only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including Section 9-608(a)(1)(C) of the UCC, need Agent account for the surplus, if any, to any Pledgor. To the extent permitted by applicable law, the Company each Pledgor waives all claims, damages, and demands against the Secured Parties Agent arising out of the repossession, retention or sale of the CollateralPledged Collateral except in each case such as arise out of the gross negligence or willful misconduct of Agent. The Company agrees Any notification of intended disposition of any of the Pledged Collateral required by law will be deemed to be a reasonable authenticated notification of disposition if given at least ten (10) days prior to such disposition and such notice shall (i) describe Agent and the applicable Pledgor, (ii) describe the Pledged Collateral that a Secured Party need not give more than 10 days notice is the subject of the intended disposition, (iii) state the method of the intended disposition, (iv) state that the applicable Pledgor is entitled to an accounting of the Obligations and state the charge, if any, for an accounting and (v) state the time and place of any public sale disposition or of the time after which a any private sale is to be made. Agent may take place and disclaim any warranties that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if might arise in connection with the proceeds of any sale sale, lease or other disposition of the Pledged Collateral are insufficient and has no obligation to provide any warranties at such time.
(b) Each Pledgor also agrees to pay all amounts costs of Agent, including reasonable attorneys’ fees and expenses, incurred with respect to which a Secured Party is entitledthe enforcement of any of Agent’s rights hereunder.
(c) The Company Each Pledgor hereby waives presentment, demand, or protest (to the extent permitted by applicable law) of any kind in connection with this Pledge Agreement or any Pledged Collateral. Except for notices provided for herein, each Pledgor hereby waives notice (to the extent permitted by applicable law) of any kind in connection with this Security Pledge Agreement.
(d) The proceeds of any sale, disposition or other realization upon all or any part of the Pledged Collateral shall be distributed by Agent in the following order of priorities: first, to Agent in an amount sufficient to pay in full the expenses of Agent in connection with Agent exercising its rights and remedies under the Note Agreement and the Collateral Documents, including but not limited to any sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by Agent in connection therewith, including reasonable attorneys’ fees and expenses; second, to Agent to the payment of the Obligations in accordance with Paragraph 5(e) of the Note Agreement; and finally, upon payment in full of all of the Obligations, to the Pledgor of such Pledged Collateral, or its representative or as a court of competent jurisdiction or as such Pledgor may direct. Each Pledgor agrees to indemnify and hold harmless Agent and each Lender, their directors, managers, officers, employees, agents and parent, and subsidiary corporations, and each of them, from and against any and all liabilities, obligations, claims, damages, or expenses incurred by any of them arising out of or by reason of entering into this Pledge Agreement or the consummation of the transactions contemplated by this Pledge Agreement, except claims, losses or liabilities resulting from Agent’s gross negligence, willful misconduct or unlawful acts, and to pay or reimburse Agent for the fees and disbursements of counsel incurred in connection with any Collateralinvestigation, litigation or other proceedings (whether or not Agent is a party thereto) arising out of or by reason of any of the aforesaid. Agent will promptly give Borrower written notice of the assertion of any claim which it believes is subject to the indemnity set forth in this Section 9 and will upon the request of Borrower promptly furnish Borrower with all material in its possession relating to such claim or the defense thereof to the extent that Agent may do so without breach of duty to others. Any amounts properly due under this Section 9 shall be payable to Agent immediately upon demand.
Appears in 2 contracts
Samples: Note Agreement (Sotherly Hotels Lp), Pledge Agreement (Sotherly Hotels Lp)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Note Purchase Agreement, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySenior Note Obligations, if any Event of Default shall have occurred and be continuing, First Lien Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent First Lien Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice notices specified in the Note Purchase Agreement or the notices below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and other notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on First Lien Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party First Lien Agent or any Senior Note Purchaser shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Senior Note Purchasers, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. First Lien Agent shall have the right to conduct such sales on the Grantor’s premises or elsewhere and shall have the right to use the Grantor’s premises without charge for such time or times as First Lien Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Grantor further agrees, at any Secured PartyFirst Lien Agent’s request, to assemble the Collateral, Collateral and make it available to one First Lien Agent at a place or more of places designated by First Lien Agent which are reasonably convenient to First Lien Agent and the Secured Parties at places which a Secured Party shall reasonably selectGrantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Until First Lien Agent is able to effect a sale, lease, or other disposition of Collateral, First Lien Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by First Lien Agent. First Lien Agent shall have no obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to Collateral while Collateral is in the possession of First Lien Agent. First Lien Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of First Lien Agent’s remedies (for the benefit of Senior Note Purchasers), with respect to such appointment without prior notice or hearing as to such appointment. First Lien Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Senior Note Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote Purchase Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties First Lien Agent of any other amount required by any provision of law, need First Lien Agent account for the surplus, if any, to the Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties First Lien Agent or any Senior Note Purchaser arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of First Lien Agent or such Senior Note Purchaser as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 days ten (10) days’ prior notice by First Lien Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Senior Note Obligations, including any attorneys’ fees and other expenses incurred by First Lien Agent or any Senior Note Purchaser to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the First Lien Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the First Lien Agent in its exercise of remedies pursuant to this Section 10 (i) to fail to incur expenses reasonably deemed significant by the First Lien Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the First Lien Agent against risks of loss, collection or disposition of Collateral or to provide to the First Lien Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the First Lien Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the First Lien Agent in the collection or disposition of any of the Collateral. The Grantor acknowledges that the purpose of this Section 10(c) is to provide non-exhaustive indications of what actions or omissions by the First Lien Agent would not be commercially unreasonable in the First Lien Agent's exercise of remedies against the Collateral and that other actions or omissions by the First Lien Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 10(c). Without limitation upon the foregoing, nothing contained in this Section 10(c) shall be construed to grant any rights to the Grantor or to impose any duties on First Lien Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 10(c).
(d) In the exercise of remedies pursuant to this Section 10, neither the First Lien Agent nor the Senior Note Purchasers shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Senior Note Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the First Lien Agent nor the Senior Note Purchasers shall be required to marshal the Collateral or any guarantee of the Senior Note Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Note Document shall be cumulative. To the extent it may lawfully do so, the Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the First Lien Agent or any Senior Note Purchaser, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 2 contracts
Samples: First Lien Pledge and Security Agreement (Advanced Communications Technologies Inc), First Lien Pledge and Security Agreement (Encompass Group Affiliates, Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Debtor expressly agrees that in any such eventevent the Collateral Agent, on behalf of the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Debtor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Debtor or any other Person notice and opportunity for a hearing on the Secured Parties’ claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Collateral Agent shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Collateral Agent shall have the right to conduct such sales on the Debtor’s premises or elsewhere and shall have the right to use the Debtor’s premises without charge for such time or times as the Collateral Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Debtor further agrees, at any Secured Partythe Collateral Agent’s request, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and the Debtor, whether at the Company's Debtor’s premises or elsewhere. Until the Collateral Agent is able to affect a sale, lease, or other disposition of Collateral, the Collateral Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Collateral Agent. The Collateral Agent shall have no obligation to the Debtor to maintain or preserve the rights of the Debtor as against third parties with respect to Collateral while Collateral is in the possession of the Collateral Agent. The Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties Parties’ or Collateral Agent’s remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote Documents, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need the Collateral Agent account for the surplus, if any, to the Debtor. To the maximum extent permitted by applicable law, the Company Debtor hereby waives all claims, damages, and demands against the Secured Parties and the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of such Secured Party or Collateral Agent as finally determined by a court of competent jurisdiction. The Company Debtor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees and other expenses incurred by the Collateral Agent to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Secured Parties or the Collateral Agent to exercise remedies in a commercially reasonable manner, the Debtor acknowledges and agrees that it is not commercially unreasonable for the Secured Parties or Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Secured Parties or Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Debtor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Secured Parties and/or the Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Secured Parties a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Collateral Agent in the collection or disposition of any of the Collateral. The Debtor acknowledges that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Parties or Collateral Agent would not be commercially unreasonable in the Secured Parties’ or Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Secured Parties or Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Debtor or to impose any duties on the Secured Parties or Collateral Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 6(c).
(d) The Secured Parties and Collateral Agent shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Debtor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Secured Parties and Collateral Agent shall not be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Document shall be cumulative. To the extent it may lawfully do so, the Debtor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Secured Parties or the Collateral Agent, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 2 contracts
Samples: Security Agreement (NovaRay Medical, Inc.), Security Agreement (NovaRay Medical, Inc.)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Default or Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automaticallycontinuing, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the event Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Party's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company further agrees, at any Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 8(d) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Party of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need Secured Party account for the surplus, if any, to Company. To the maximum extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or wilful misconduct of Secured Party. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
ten (c10) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.days'
Appears in 2 contracts
Samples: Convertible Promissory Note Agreement (Team Communication Group Inc), Convertible Promissory Note Agreement (Team Communication Group Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Note Purchase Agreement, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySubordinated Note Obligations, if any Event of Default shall have occurred and be continuing, Second Lien Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Second Lien Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice notices specified in the Note Purchase Agreement or the notices below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and other notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on Second Lien Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Second Lien Agent or any Subordinated Note Purchaser shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Subordinated Note Purchasers, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Second Lien Agent shall have the right to conduct such sales on the Grantor’s premises or elsewhere and shall have the right to use the Grantor’s premises without charge for such time or times as Second Lien Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Grantor further agrees, at any Secured PartySecond Lien Agent’s request, to assemble the Collateral, Collateral and make it available to one Second Lien Agent at a place or more of places designated by Second Lien Agent which are reasonably convenient to Second Lien Agent and the Secured Parties at places which a Secured Party shall reasonably selectGrantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Until Second Lien Agent is able to effect a sale, lease, or other disposition of Collateral, Second Lien Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Second Lien Agent. Second Lien Agent shall have no obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to Collateral while Collateral is in the possession of Second Lien Agent. Second Lien Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Second Lien Agent’s remedies (for the benefit of Subordinated Note Purchasers), with respect to such appointment without prior notice or hearing as to such appointment. Second Lien Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Subordinated Note Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote Purchase Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Second Lien Agent of any other amount required by any provision of law, need Second Lien Agent account for the surplus, if any, to the Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Second Lien Agent or any Subordinated Note Purchaser arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Second Lien Agent or such Subordinated Note Purchaser as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 days ten (10) days’ prior notice by Second Lien Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Subordinated Note Obligations, including any attorneys’ fees and other expenses incurred by Second Lien Agent or any Subordinated Note Purchaser to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Second Lien Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the Second Lien Agent in its exercise of remedies pursuant to this Section 10 (i) to fail to incur expenses reasonably deemed significant by the Second Lien Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Second Lien Agent against risks of loss, collection or disposition of Collateral or to provide to the Second Lien Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Second Lien Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Second Lien Agent in the collection or disposition of any of the Collateral. The Grantor acknowledges that the purpose of this Section 10(c) is to provide non-exhaustive indications of what actions or omissions by the Second Lien Agent would not be commercially unreasonable in the Second Lien Agent's exercise of remedies against the Collateral and that other actions or omissions by the Second Lien Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 10(c). Without limitation upon the foregoing, nothing contained in this Section 10(c) shall be construed to grant any rights to the Grantor or to impose any duties on Second Lien Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 10(c).
(d) In the exercise of remedies pursuant to this Section 10, neither the Second Lien Agent nor the Subordinated Note Purchasers shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Subordinated Note Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Second Lien Agent nor the Subordinated Note Purchasers shall be required to marshal the Collateral or any guarantee of the Subordinated Note Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Note Document shall be cumulative. To the extent it may lawfully do so, the Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Second Lien Agent or any Subordinated Note Purchaser, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 2 contracts
Samples: Second Lien Pledge and Security Agreement (Encompass Group Affiliates, Inc), Second Lien Pledge and Security Agreement (Advanced Communications Technologies Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur under the Note and be continuing and any Secured Party shall have declared the amounts owing under the Note(scontinuing:
(i) to be due and payable (or such amounts shall have automatically, become due and payable), all All payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured PartiesCollateral Agent, shall be segregated from other funds of the Company and shall, if requested by any Secured Party shall forthwith upon receipt by the Company be turned over to the Secured PartiesCollateral Agent, in the same form as received by the Company (duly endorsed by the Company to the Secured PartiesCollateral Agent, if required); and
(ii) Any and all such payments so received by the Collateral Agent (whether from the Company or otherwise) may, in the sole discretion of the Collateral Agent, be held by the Collateral Agent as collateral security, for/or then or at any time thereafter applied in whole or in part by the Collateral Agent against all or any part of the Obligations. Any balance of such payments held by the Collateral Agent and remaining after payment in full of all the Obligations shall be paid over to the Company or to whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party continuing:
(i) The Collateral Agent may exercise in addition to all other rights and remedies granted to it in this Security Agreement or Agreement, and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. UCC; and
(ii) Without limiting the generality of the foregoing, the Company expressly agrees that agrees, that, subject to applicable law, in any such event, event the Secured PartiesCollateral Agent, without demand of performance or other demand, demand or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person (all and each of which demands and/or notices are hereby expressly waived), may (but shall be under no duty to) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), ) or any part thereofhereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ Collateral Agent's offices or elsewhere at such prices as it the Collateral Agent may deem bestappropriate, for cash or on credit or for future delivery without assumption of any credit risk, in all cases in a commercially reasonable manner and in compliance with applicable law. Each Secured Party The Collateral Agent shall have the right (but not the duty) upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, sales to purchase the whole or any part of said Collateral so sold, free of subject to any right or equity of redemption, which to equity of redemption in the Company hereby releasesCompany. The Company further agrees, at any Secured Party’s the Collateral Agent's request, to assemble the Collateral, make it available to one or more of the Secured Parties Collateral Agent at places which a Secured Party shall reasonably the Collateral Agent may reasonable select, whether at the Company's premises or elsewhere. The Secured Parties Collateral Agent shall apply the net proceeds Proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all payment of the Collateral or in any way relating to the rights of Obligations, allocated among the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, in proportion as nearly as practicable to the payment in whole or in part respective outstanding principal amounts of Note held by such Secured Parties (with first priority to repayment of any amounts owing to the ObligationsCollateral Agent), the Company remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, and, provided the Collateral Agent acts in a commercially reasonable manner as required by applicable law, the Company waives all claims, damages, damages and demands against the Secured Parties Collateral Agent arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party the Collateral Agent need not give more than 15 days' notice (which notification shall be deemed given when mailed, postage prepaid, addressed to the Company at its address as set forth in Section 10 days notice hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if If the proceeds Proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party the Collateral Agent is entitled, the Company shall be liable for the fees of any attorneys or Agents employed by the Collateral Agent to collect such deficiency.
(c) The Company also agrees to pay on demand all fees, costs and expenses of the Collateral Agent, including all reasonable attorneys' fees, incurred with respect to the Collection of any of the Obligations and the enforcement of any of their respect rights hereunder, including, without limitation, all fees, costs and expenses incurred in connection with any advice, suits, appeals, insolvency or other proceedings under the federal bankruptcy code or otherwise.
(d) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable lawlaw and not otherwise expressly contemplated by this Security Agreement) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given Subject to the Secured Parties hereunder, if an Event rights of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing Working Capital Agent under the Note(s) Working Capital Loan Documents and the Intercreditor Agreement referred to be due and payable (or such amounts shall have automaticallyin Section 25, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Indenture, the other Indenture Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Note Event of Default shall have occurred and be continuing, Trustee may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Trustee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of each Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Trustee’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Trustee or any other Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Trustee and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantors hereby release to the Company hereby releasesextent not prohibited by the Code. The Company Such sales may be adjourned and continued from time to time with or without notice. Trustee shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use Grantors’ premises without charge for such time or times as Trustee deems necessary or advisable. If any Note Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyTrustee’s request, to assemble the Collateral, its Collateral and make it available to one Trustee at a place or more of the Secured Parties at places designated by Trustee which a Secured Party shall are reasonably selectconvenient to Trustee and Grantors, whether at the Company's Grantors’ premises or elsewhere. The Until Trustee is able to effect a sale, lease, or other disposition of Collateral, Trustee shall have the right to hold or use Collateral, or any part thereof; to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Trustee. During the continuance of a Note Event of Default, each Grantor shall permit the Trustee or any of its agents or designees to access and use such Grantor’s property, plant and equipment to process Inventory, and each Grantor shall use its best efforts to cause each party (other than labor unions unless such unions have any rights under their security documents to interfere with such access) with security interests in such property, plant or equipment (other than the continuous caster currently pledged to the PBGC) to provide its consent for such access. Trustee may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Trustee’s remedies (for the benefit of Trustee and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Trustee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the careObligations as provided in the Indenture and the Intercreditor Agreement, safe keeping or otherwise of any or all of the Collateral or described in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationSection 25, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Trustee of any other amount required by any provision of law, need Trustee account for the surplus, if any, to Grantors. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Trustee or any other Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Trustee or such other Secured Party (or their respective employees, agents or representatives) as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 days ten (10) days’ prior notice by Trustee of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any reasonable attorneys’ fees and other reasonable expenses incurred by Trustee or any other Secured Party is entitledto collect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Trustee to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Trustee (i) to fail to incur expenses reasonably deemed significant by the Trustee to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other persons, whether or not in the same business as each Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase reasonable amounts of insurance or credit enhancements to insure the Trustee against risks of loss, collection or disposition of Collateral or to provide to the Trustee a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent reasonably deemed appropriate by the Trustee, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Trustee in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Trustee would not be commercially unreasonable in the Trustee’s exercise of remedies against the Collateral and that other actions or omissions by the Trustee shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to Grantors or to impose any duties on Trustee that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Trustee nor the other Secured Parties shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Trustee nor the other Secured Parties shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Indenture Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Trustee or any other Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Secured Party may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Debtor expressly agrees that in any such event, event the Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Debtor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Debtor or any other Person notice and opportunity for a hearing on the Secured Party's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Party shall have the right to conduct such sales on the Debtor's premises or elsewhere and shall have the right to use the Debtor's premises without charge for such time or times as the Secured Party deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Debtor further agrees, at any the Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at a place or places which a designated by the Secured Party shall which are reasonably selectconvenient to the Secured Party and the Debtor, whether at the CompanyDebtor's premises or elsewhere. Until the Secured Party is able to affect a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Party. The Secured Parties Party shall have no obligation to the Debtor to maintain or preserve the rights of the Debtor as against third parties with respect to Collateral while Collateral is in the possession of the Secured Party. The Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Party's remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationTransaction Documents, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need the Secured Party account for the surplus, if any, to the Debtor. To the maximum extent permitted by applicable law, the Company Debtor hereby waives all claims, damages, and demands against the Secured Parties Party and the Secured Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of such Secured Party as finally determined by a court of competent jurisdiction. The Company Debtor agrees that a ten (10) days prior notice by the Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Obligations, including any attorneys' fees and other expenses incurred by the Secured Party is entitledto collect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, the Debtor acknowledges and agrees that it is not commercially unreasonable for the Secured Party (i) to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Debtor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral. The Debtor acknowledges that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Party would not be commercially unreasonable in the Secured Party's exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Debtor or to impose any duties on the Secured Party that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 6(c).
(d) The Secured Party shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Debtor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Secured Party shall not be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Document shall be cumulative. To the extent it may lawfully do so, the Debtor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenant not to assert against the Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing and subject to the Intercreditor Agreement, Agent may for the benefit of Secured Parties exercise all rights and remedies of a secured party in respect of the Collateral under the CodeCode as enacted in any such jurisdiction in effect at that time. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except such notice as may be specifically required by law and the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help or otherwise, and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each To facilitate the foregoing, Agent shall have the right to use each Grantor’s books and records, to obtain access to each Grantor’s data processing equipment, computer hardware and Software and the information contained therein in any manner which Agent deems appropriate. Agent or any Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time or times as Agent deems necessary or advisable with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or at its offices or elsewhere as permitted by applicable law and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent will give each Grantor reasonable notice of the time and place of any public sale thereof or of the time on or after which any private sale thereof is to be made. The Company requirement of reasonable notice conclusively shall be met if such notice is mailed, certified mail, postage prepaid, to each Grantor at its address set forth on the signature pages hereto or delivered or otherwise sent to each Grantor, at least ten (10) days before the date of the sale. Each Grantor expressly waives, to the fullest extent permitted by applicable law, any right to receive notice of any public or private sale of any Collateral or other security for the Obligations except as expressly provided for in this paragraph. The Agent shall not be obligated to make any sale of the Collateral if it shall determine not to do so regardless of the fact that notice of sale of the Collateral may have been given. Agent may, without notice or publication, except as required by applicable law, adjourn the sale from time to time by announcement at the time and place fixed for sale; and such sale may, without further notice (except as required by applicable law), be made at the time and place to which the same was so adjourned. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such sale, lease, license, other disposition of, or any collection, recovery, receipt, appropriationor realization on, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental the Collateral to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Agent or any Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a , except such as arise solely out of the gross negligence or willful misconduct of Agent or such Secured Party need not give more than 10 days notice as finally determined by a court of the time competent jurisdiction. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and place of Agent shall have no obligation to provide any public sale or of the time after which a private sale may take place and that warranties at such notice is reasonable notification of such matterstime. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations or to which cover reasonable and documented costs and expenses of such sale or disposition.
(b) To the extent that applicable law imposes duties on Agent to exercise remedies in a Secured Party commercially reasonable manner, each Grantor acknowledges and agrees that it is entitlednot commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(b). Without limitation upon the foregoing, nothing contained in this Section 8(b) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 8(b).
(c) The Company hereby waives presentmentNeither Agent nor any Secured Parties shall be required to make any demand upon, demandor pursue or exhaust any of their rights or remedies against, protest any Grantor, any other obligor, guarantor, pledgor or any notice (other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Secured Parties shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent permitted by it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Secured Parties, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable law) to the sale of any kind in connection with Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
(d) All actions allowed to be taken pursuant to this Section 8 or otherwise pursuant to this Agreement or any Collateralshall only be allowed if permitted pursuant to the Intercreditor Agreement.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitypursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodePPSA, UCC, CCQ and other applicable law. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the PPSA, UCC and CCQ and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Agent or the other Secured Party Parties receive payment, and if the buyer defaults in payment, the Agent may resell the Collateral without further notice to any Grantor. The Agent or any of the other Secured Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s requestrequest following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of the Collateral, the Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Agent or marshal any Collateral for the benefit of any Person. In the event the Agent seeks to take possession of all or any portion of the Collateral by the judicial process, each Grantor irrevocably waives (i) any demand for possession prior to the commencement of any suit or action to recover the Collateral and (ii) any requirement that the Agent retain possession and not dispose of any Collateral until after trial or final judgment. The Agent may, if it so elects, and, in addition to any other rights it may have, appoint by instrument in writing a receiver or receiver and manager (both of which are herein called a “Receiver”) of all or any part of the Collateral or may institute proceedings in any court of competent jurisdiction for the appointment of such a Receiver. Any such Receiver is hereby given and shall have the same powers and rights and exclusions and limitations of liability as the Secured Parties and the Agent have under this Security Agreement, at law or in equity. In exercising any such powers, any such Receiver shall, to the extent permitted by law, act as and for all purposes shall be deemed to be the agent of the Grantor, and the Secured Parties and the Agent shall not be responsible for any act or default of any such Receiver. The Agent may appoint one or more Receivers hereunder and may remove any such Receiver or Receivers and appoint another or others in his or their stead from time to time. Any Receiver so appointed may be an officer or employee of the Agent or any of the other Secured Parties. A court need not appoint, ratify the appointment by the Agent of or otherwise supervise in any manner the actions of any Receiver. Upon the Grantor receiving notice from the Agent of the taking of possession of the Collateral or the appointment of a Receiver, all powers, functions, rights and privileges of each of the directors and officers of the Grantor with respect to the Collateral shall cease, unless specifically continued by the written consent of the Agent. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting sale to the Obligations first to all reasonable costs and expenses of every kind incurred therein collection, recovery, receipt, appropriation, realization or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereundersale, including reasonable attorneys' fees attorney’s fees, and legal expenses, to then as provided in the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to the applicable Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Agent or any of the other Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence, bad faith or willful misconduct of the Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Unless a greater period of time is required by applicable law, each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees or other expenses (to which a the extent provided for herein or in the Credit Agreement) incurred by the Agent or any of the other Secured Party is entitledParties to collect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to the Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of the Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on the Collateral or to remove Liens on or any adverse claims against the Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of the Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of the Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of the Collateral or to provide to the Agent a guaranteed return from the collection or disposition of the Collateral, (l) to dispose of Leases, Inventory and related Collateral in one or more portfolio sales or in individual sale transactions, or (m) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 19(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 19(d). Without limitation upon the foregoing, nothing contained in this Section 19(d) shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 19(d).
Appears in 1 contract
Samples: Canadian Security Agreement (United Rentals North America Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityif any Event of Default shall have occurred and be continuing, Agent may, subject to the Intercreditor Agreement, exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. Subject in all cases to the Intercreditor Agreement, if any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by Agent would be commercially reasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 8(c).
(d) Neither Agent nor any Lender shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Lender shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Secured Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, Agent may, upon receipt of an Act of Required Secured Parties, for the benefit of Secured Parties exercise all rights and remedies of a secured party in respect of the Collateral under the CodeCode as enacted in any such jurisdiction in effect at that time. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except such notice as may be specifically required by law and the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help or otherwise, and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each To facilitate the foregoing, Agent shall have the right to use each Grantor’s books and records, to obtain access to each Grantor’s data processing equipment, computer hardware and software and the information contained therein in any manner which Agent deems appropriate. Agent or any Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company further agrees, at any Secured PartySuch sales may be adjourned and continued from time to time or times as Agent deems necessary or advisable with or without notice. Agent shall have the right to conduct such sales on each Grantor’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization at its offices or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent elsewhere as permitted by applicable lawlaw and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not Agent will give more than 10 days each Grantor reasonable notice of the time and place of any public sale thereof or of the time on or after which a any private sale may take place and that such notice thereof is reasonable notification of such mattersto be made. The Company requirement of reasonable notice conclusively shall remain liable for any deficiency be met if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.such confidential confidential
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies authorized or granted to it in under this Security Agreement or in Agreement, the Purchase Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Secured Party may exercise all rights and remedies of a secured party under the CodeCode (whether or not in effect in the jurisdiction where such rights are exercised). Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on the Secured Party’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and, following the delivery of notice to the Grantor may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Party, the whole or any part of said Collateral so sold, free of any right whatsoever. Such sales may be adjourned and continued from time to time with or equity of redemption, which equity of redemption the Company hereby releaseswithout notice. The Company Secured Party shall have the right to conduct such sales on the Grantor’s premises or elsewhere and shall have the right to use the Grantor’s premises without charge for such time or times as the Secured Party deems necessary or advisable. If any Event of Default shall have occurred and be continued, the Grantor further agrees, at any the Secured Party’s request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at a place or places which a designated by the Secured Party shall which are reasonably selectconvenient to the Secured Party and the Grantor, whether at the Company's Grantor’s premises or elsewhere. Until the Secured Party is able to effect a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Secured Party. The Secured Parties Party shall have no obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Secured Party. The Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Party’s remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all Secured Obligations as provided in Section 2(b) of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need the Secured Party account for the surplus, if any, to the Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the Collateral. The Company Grantor agrees that a ten (10) days prior notice by the Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Obligations, including any reasonable attorneys’ fees and other expenses incurred by the Secured Party is entitledto collect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, the Grantor acknowledges and agrees that it is not commercially unreasonable for the Secured Party (i) to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (iv) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (v) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (vi) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (vii) to dispose of assets in wholesale rather than retail markets, (viii) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (ix) to purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of Collateral, or (x) to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral. The Grantor acknowledges that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Party would not be commercially unreasonable in the Secured Party’s exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Grantor or to impose any duties on the Secured Party that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 6(c).
(d) The Secured Party shall not be required to make any demand upon, or pursue or exhaust any of its rights or remedies against, the Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of its rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Secured Party shall not be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and its rights hereunder shall be cumulative. To the extent it may lawfully do so, the Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur have occurred and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party Agent may exercise in addition to all other rights and remedies granted to it in under this Supplemental Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of each Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action (on behalf of Agent and Lenders), and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent or any Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use each Grantor's premises without charge for such time or times as Agent deems necessary or advisable. Each Grantor further agrees, if any Event of Default shall have occurred and be continuing, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more Agent, for the benefit of the Secured Parties Agent and Lenders, at places which a Secured Party Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all Obligations as provided in SECTION 1.11 of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including SECTION 9-504(L)(C) of the Code (but only after Agent has received what it considers reasonable proof of a subordinate party's security interest), need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party Agent, for itself and the ratable benefit of Lenders, is entitled, each Grantor also being liable for any attorneys' fees incurred by Agent or any Lender to collect such deficiency.
(b) Each Grantor, jointly and severally, agrees to pay any and all costs of Agent or any Lender, including attorneys' fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Supplemental Security Agreement or any Collateral.
Appears in 1 contract
Samples: Supplemental Security Agreement (Wilsons the Leather Experts Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or in under the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Administrative Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Credit Party expressly agrees that in any such event, event the Secured PartiesAdministrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice required by the Interim Order or Final Order or the notice specified below of time and place of public or private sale) to or upon the Company such Credit Party or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may, to the maximum extent permitted by law, forthwith enter upon the premises of such Credit Party where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Credit Party or any other Person notice and opportunity for a hearing on the Administrative Agent's claim or action and may forthwith collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Administrative Agent or any Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Credit Party hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Administrative Agent shall have the right to conduct such sales on any Credit Party's premises or elsewhere and shall have the right to use any Credit Party's premises without charge for such time or times as the Administrative Agent may deem necessary or advisable. EACH CREDIT PARTY HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS ADMINISTRATIVE AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF SUCH CREDIT PARTY WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE PLEDGED SHARES, THE APPOINTMENT OF ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, (X) ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO AND (Y) ADMINISTRATIVE AGENT SHALL NOT EXERCISE ANY SUCH RIGHT WITH RESPECT TO ANY REGULATED SUBSIDIARY UNLESS ANY AND ALL REGULATORY APPROVALS REQUIRED UNDER APPLICABLE LAW SHALL HAVE BEEN OBTAINED.
(b) If any Event of Default shall have occurred and be continuing, each Credit Party further agrees, at any Secured Party’s Administrative Agent's request, to assemble the Collateral, Collateral and make it available to one Administrative Agent at a place or more of the Secured Parties at places designated by Administrative Agent which a Secured Party shall are reasonably selectconvenient to Administrative Agent and such Credit Party, whether at the Companysuch Credit Party's premises or elsewhere. Until Administrative Agent is able to effect a sale, lease, or other disposition of Collateral, the Administrative Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Administrative Agent. The Administrative Agent shall have no obligation to any Credit Party to maintain or preserve the rights of Credit Party as against third parties with respect to Collateral while Collateral is in the possession of the Administrative Agent. The Administrative Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Administrative Agent's remedies (for the benefit of Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Administrative Agent shall apply deposit the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Cash Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees Account and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitledbe applied in accordance with Section 1.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Delta Air Lines Inc /De/)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to Upon the Secured Parties hereunder, if an Event occurrence of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained events set forth in the preceding Section 23 above, held by the Company in trust for and provided that the Secured PartiesSums had not been fully paid, shall the Bank will be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over entitled to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing evidencing, or relating to the Obligations or at law or in equitySecured Sums, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Guarantor expressly agrees that in upon the occurrence of any such eventEvent of Default (and provided that such Event of Default had not been cured during the applicable cure period), the Secured PartiesBank, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Guarantor or any other person (all and each of which demands, advertisements, and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said such Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Bank's offices or elsewhere at such prices on such terms as it the Bank may deem commercially best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Bank shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said such Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company Guarantor further agrees, at any Secured Party’s the Bank's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Bank at places which a Secured Party that the Bank shall reasonably select, whether at the CompanyGuarantor's premises or elsewhere. The Secured Parties Bank shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or as provided in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the ObligationsSection 13(d) hereof, the Company Guarantor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Bank of any other amount required by any provision of law, including section 9-610 of the UCC, need the Bank account for the surplus, if any, to the Guarantor. To the maximum extent permitted by applicable law, the Company Guarantor waives all claims, damages, and demands against the Secured Parties Bank arising out of the repossession, retention retention, or sale of the CollateralCollateral except such as arise out of the gross negligence, fraud, misrepresentation, bad faith or willful misconduct of the Bank. The Company Guarantor agrees that a Secured Party the Bank need not give more than 10 days sixty (60) days' prior notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to the Guarantor at its address referred to in Section 17 hereof with confirmation of receipt) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Guarantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts of the Secured Sums.
(b) The Guarantor also agrees to which a Secured Party is entitledpay all costs of the Bank, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Except as otherwise set forth in this Security Agreement, the Guarantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition, or other realization upon all or any part of the Collateral shall be distributed by the Bank in the following order:
(a) first, in discharge of all expenses incurred in connection with collecting the Secured Sums, including the expenses and remuneration of any receiver and/or manager at such rate as reasonably fixed by the Bank;
(b) second, in discharge of the further amounts that are due to the Bank in consequence of the linkage conditions, the interest, damages, commission and expenses now and in future due to the Bank pursuant to this Security Agreement;
(c) third, in discharge of the principal of the Secured Sums; and
(d) fourth, to pay to the Guarantor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
(e) The Bank shall not be required to resort to or pursue any of its rights or remedies under or with respect to any other agreement or any other collateral or charge before pursuing any of its rights or remedies under this Security Agreement. The Bank may pursue its rights and remedies in such order as it determines, and the exercise by the Bank of any right or remedy will not preclude the Bank from exercising any other right or remedy.
(f) Until such time as any of the events set forth in Section 3 above have occurred, the Bank shall not exercise the rights set forth in subsection (a) above, including without limitation giving a Notice of Exclusive Control under the Deposit Account Control Agreement by and among the Bank, the Guarantor and Bank Leumi USA dated as of July 19th, 2017 (as such term is defined therein) or the giving of any similar notice under any other deposit account control agreement granting a security interest in any deposit account entered into pursuant to this Agreement or as a result of the Banking Services.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Unit Notes, the Subscription Agreements and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Collateral Agent may (or, if so directed by the Required Holders, shall) exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, event the Secured PartiesCollateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Company where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Company or any other Person notice and opportunity for a hearing on the Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Collateral Agent or any other Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Collateral Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Collateral Agent shall have the right to conduct such sales on the Company’s premises or elsewhere and shall have the right to use the Company’s premises without charge for such time or times as the Collateral Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Company further agrees, at any Secured Partythe Collateral Agent’s request, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and the Company, whether at the Company's ’s premises or elsewhere. Until the Collateral Agent is able to effect a sale, lease, or other disposition of Collateral, the Collateral Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Collateral Agent. The Collateral Agent shall have no obligation to the Company to maintain or preserve the rights of the Company as against third parties with respect to Collateral while Collateral is in the possession of the Collateral Agent. The Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Collateral Agent’s remedies (for the benefit of the Collateral Agent and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationNote Documents, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need the Collateral Agent account for the surplus, if any, to the Company. To the maximum extent permitted by applicable law, the Company waives all claims, damages, and demands against the Collateral Agent or any other Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Collateral Agent or such other Secured Party as finally determined by a court of competent jurisdiction. The Company agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Obligations, including any attorneys’ fees and other expenses incurred by the Collateral Agent or any other Secured Party is entitledto collect such deficiency.
(cb) The Except as otherwise specifically provided herein, the Company hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Collateral Agent to exercise remedies in a commercially reasonable manner, the Company acknowledges and agrees that it is not commercially unreasonable for the Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Company, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Collateral Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Collateral Agent in the collection or disposition of any of the Collateral. The Company acknowledges that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Collateral Agent would not be commercially unreasonable in the Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Company or to impose any duties on the Collateral Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 6(c).
(d) Neither the Collateral Agent nor the other Secured Parties shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Company, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Collateral Agent nor the other Secured Parties shall be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Note Document shall be cumulative. To the extent it may lawfully do so, the Company absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Collateral Agent or any other Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
(e) Without limiting the foregoing, upon the occurrence and during the continuance of an Event of Default and upon written notice thereof to the Company, all rights of the Company to exercise any voting or consensual powers with respect to any Equity Interests in which the Company has an interest and to receive and retain the distributions which it would otherwise be entitled to receive and retain shall terminate and all such powers and rights to receive and retain such distributions shall immediately without further action become vested in the Collateral Agent.
Appears in 1 contract
Samples: Security Agreement (Inergetics Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Financing Agreements and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Lender may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on the Lender's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Lender, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Lender shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as the Lender deems necessary or advisable.
(b) Grantor further agrees, at any Secured Party’s the Lender's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Lender at places which a Secured Party the Lender shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. Until the Lender is able to effect a sale, lease, or other disposition of Collateral, the Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems reasonably appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed reasonably appropriate by the Lender. The Secured Parties Lender shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Lender. The Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Lender's remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Lender of any other amount (Page 196 of 252 Pages) required by any provision of law, need the Lender account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 days ten (10) days' prior notice by the Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by the Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) a. If any Event of Default shall occur and be continuing and subject to continuing, the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in the other Credit Transaction Documents, or under any other instrument or agreement securing, evidencing evidencing, guaranteeing or otherwise relating to the Obligations or at law or in equityObligations, all rights and remedies of that it has as a secured party under the Code. Without limiting the generality of the foregoing, each of the Company Pledgors expressly agrees that in any such event, event the Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Pledgor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Pledgor notice and opportunity for a hearing on the Secured Party's claim or action, and without paying rent to such Pledgor, and collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Party the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Pledgor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Party shall have the right to conduct such sales on such Pledgor's premises or elsewhere and shall have the right to use such Pledgor's premises without charge for such time or times as the Secured Party deems necessary or advisable. Each of the Pledgors further agrees, at any the Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at such places which a the Secured Party shall reasonably select, whether at the Companysuch Pledgor's premises or elsewhere. Until the Secured Party is able to effect a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to use, operate or administer Collateral on behalf of the Secured Party, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Party. The Secured Parties Party shall have no obligation to each of the Pledgors to maintain or preserve the rights of such Pledgor as against third parties with respect to any Collateral while such Collateral is in the possession of the Secured Party. The Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Party's remedies with respect to such appointment without prior notice or hearing. The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or salesale as provided in Section 8(d) hereof, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company such Pledgor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Party of any other amount required by any provision of law, including Section 9-504(1)(c) of the Code (but only after the Secured Party has received what the Secured Party considers reasonable proof of a subordinate party's security interest), need the Secured Party account for the surplus, if any, to such Pledgor. To the maximum extent permitted by applicable law, each of the Company Pledgors waives all claims, damages, and demands against the Secured Parties Party or any Participating Creditor arising out of the repossession, liquidation, collection, retention or sale of the CollateralCollateral except to the extent that such claims or damages arise solely out of the gross negligence or willful misconduct of such party. The Company Each of the Pledgors agrees that a ten (10) days' prior notice by the Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each of the Pledgors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a the Secured Party is or any Participating Creditor are entitled, such Pledgor also being liable for any reasonable attorneys' fees incurred by the Secured Party or the Participating Creditors to collect such deficiency.
(c) The Company b. Each of the Pledgors agrees to pay any and all costs of the Secured Party and the Participating Creditors, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of the Secured Party's rights and remedies hereunder.
c. Except as otherwise specifically provided herein, each of the Pledgors hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement Agreement, any other Credit Transaction Document or any Collateral.
d. The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by the Secured Party upon receipt, in accordance with the terms of the Intercreditor Agreement.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Default or Event of Default shall occur and be continuing continuing, Agent may, and any Secured Party shall have declared at the amounts owing under the Note(srequest of Holders holding sixty percent (60%) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any more of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2then outstanding Secured Obligations, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing evidencing, or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person (all and each of which demands, advertisements, and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said such Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said such Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. The Company Each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party that Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in SECTION 8(D) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company such Grantor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including section 9615(a)(3) of the UCC, need Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent and Holders arising out of the repossession, retention retention, or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Agent or any Holder. The Company Each Grantor agrees that a Secured Party Agent need not give more than 10 days twenty (20) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to such Grantor at its address referred to in SECTION 12 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is Agent and Holders are entitled, such Grantor also being liable for the fees of any attorneys employed by Agent and Holders to collect such deficiency.
(b) Each Grantor also agrees to pay all costs of Agent and Holders, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Each Grantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition, or other realization upon all or any part of the Collateral shall be distributed by Agent in the following order: first to payment in full of all the Secured Obligations and then to pay to the Grantors, or their representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Lender may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantors expressly agrees agree that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantors or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of the Grantors where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantors or any other Person notice and opportunity for a hearing on Lender's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Lender, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantors hereby releasesrelease. Such sales may be adjourned and continued from time to time with or without notice. The Company further agreesLender shall have the right to conduct such sales on the Grantors' premises or elsewhere and shall have the right to use the Grantors' premises without charge for such time or times as the Lender deems reasonably necessary or advisable.
(b) Upon the occurrence and during the continuation of an Event of Default, the Grantors shall, (i) at any Secured Party’s requestthe Lender's request , to assemble the Collateral, Collateral and make it available to one the Lender at a place or more of places designated by the Secured Parties at places Lender which a Secured Party shall are reasonably selectconvenient to the Lender and the Grantors, whether at the Company's Grantors' premises or elsewhere. The Secured Parties ; (ii) until the Lender is able to effect a sale, lease, or other disposition of Collateral, the Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Lender; (iii) the Lender shall have no obligation to the Grantors to maintain or preserve the rights of the Grantors as against third parties with respect to Collateral while Collateral is in the possession of the Lender; (iv) the Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Lender's remedies, with respect to such appointment without prior notice or hearing as to such appointment; (v) the Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Lender of any other amount required by any provision of law. To , need the Lender account for the surplus, if any, to the Grantors; (vi) to the maximum extent permitted by applicable law, the Company waives Grantors waive all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the Collateral. The Company agrees Collateral except such as arise solely out of the gross negligence or willful misconduct of the Lender as finally determined by a court of competent jurisdiction;
(vii) the Grantors agree that a Secured Party need not give more than 10 ten (10) days prior notice by the Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company ; (viii) the Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any reasonable attorneys' fees or other reasonable expenses incurred by the Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Indenture, the other Collateral Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent, the Trustee or any Holder shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent, the Trustee and Holders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on the Grantors' premises or elsewhere and shall have the right to use the Grantors' premises without charge for such time or times as Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent, the Trustee and Holders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided herein and in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationIndenture, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to the applicable Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against Agent, the Secured Parties Trustee or any Holder arising out of the repossession, retention or sale of the CollateralCollateral except such as determined by a court of competent jurisdiction in a final nonappealable judgment to have resulted primarily from the gross negligence or willful misconduct of Agent, the Trustee or such Holder as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior written notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any reasonable attorneys' fees or other out-of-pocket expenses actually incurred by Agent, the Trustee or any Holder to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 14(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 14(d). Without limitation upon the foregoing, nothing contained in this Section 14(d) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 14(d).
Appears in 1 contract
Samples: Security Agreement (Umt Holdings Lp)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations or at law or in equitypursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Agent or any of the other Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s requestrequest following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of the Collateral, the Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of the Collateral and to enforce any of the Agent’s remedies (for the benefit of the Agent and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to the applicable Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Agent or any of the other Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence, bad faith or willful misconduct of the Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses (to which a the extent provided for herein or in the Credit Agreement) incurred by the Agent or any of the other Secured Party is entitledParties to collect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to the Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of the Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on the Collateral or to remove Liens on or any adverse claims against the Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of the Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of the Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of the Collateral or to provide to the Agent a guaranteed return from the collection or disposition of the Collateral, (l) to dispose of Leases, Inventory and related Collateral in one or more portfolio sales or in individual sale transactions, or (m) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 21(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 21(d). Without limitation upon the foregoing, nothing contained in this Section 21(d) shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 21(d).
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Purchaser may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Purchaser, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Purchaser's claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Purchaser shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Purchaser shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Purchaser deems necessary or advisable. If any Event of Default shall have occurred and be continued, each Grantor further agrees, at any Secured Party’s Purchaser's request, to assemble the Collateral, Collateral and make it available to one Purchaser at a place or more of the Secured Parties at places designated by Purchaser which a Secured Party shall are reasonably selectconvenient to Purchaser and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Purchaser is able to effect a sale, lease, or other disposition of Collateral, Purchaser shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Purchaser. Purchaser shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Purchaser. Purchaser may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Purchaser's remedies, with respect to such appointment without prior notice or hearing as to such appointment. Purchaser shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Purchaser of any other amount required by any provision of law, need Purchaser account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Purchaser arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Purchaser as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Purchaser of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees and other expenses incurred by Purchaser to which a Secured Party is entitled.
(c) The Company collect such deficiency. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral. To the extent that applicable law imposes duties on the Purchaser to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Purchaser (i) to fail to incur expenses reasonably deemed significant by the Purchaser to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Purchaser against risks of loss, collection or disposition of Collateral or to provide to the Purchaser a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Purchaser, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Purchaser in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by the Purchaser would not be commercially unreasonable in the Purchaser's exercise of remedies against the Collateral and that other actions or omissions by the Purchaser shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to any Grantor or to impose any duties on Purchaser that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c). The Purchaser shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Purchaser shall not be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Purchaser, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(scontinuing:
(i) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company Borrower under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company Borrower in trust for the Secured PartiesLender, shall be segregated from other funds of the Company Borrower and shall, if requested by any Secured Party forthwith upon receipt by the Company Borrower, be turned over to the Secured Parties, Lender in the same form as received by the Company Borrower (duly endorsed indorsed by the Company Borrower to the Secured PartiesLender, if required); and
(ii) any and all such payments so received by the Lender (whether from the Borrower or otherwise) may, in the sole discretion of the Lender, be held by the Lender as collateral security for, and/or then or at any time thereafter be applied (subject only to the relevant provisions of the Loan Agreement or of applicable law) in whole or in part by the Lender first to pay any and all Obligations due and payable other than principal of or premium, if any, or interest on the Term Notes, and second to pay principal of and premium, if any, and interest on the Term Notes. Any balance of such payments held by the Lender and remaining after payment in full of all the Obligations shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing and subject to continuing, the subordination provisions of the preceding Section 2, any Secured Party Lender may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other Security Document or other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Uniform Commercial Code. Without limiting the generality of the foregoing, the Company Borrower expressly agrees that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Borrower or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, Collateral or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said the Collateral or any part thereof (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange exchange, broker's board or at any of the Secured Parties’ Lender's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said the Collateral so sold, free of any right or equity of redemptionredemption in the Borrower, which right or equity of redemption the Company is hereby releasesexpressly waived and released. The Company Borrower further agrees, at any Secured Party’s the Lender's request, to assemble the Collateral, make it available to one or more of the Secured Parties Lender at places which a Secured Party the Lender reasonably shall reasonably select, whether at the CompanyBorrower's premises or elsewhere. The Secured Parties Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties Lender hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as the Company remaining liable for any deficiency remaining unpaid after the applicationLender may elect, and only after so paying over applying such net proceeds and after the payment by the Secured Parties Lender of any other amount required by any provision of law, including Section 9-504 (1) (c) of the Code, shall the Lender be required to account for the surplus, if any, to the Borrower. To the extent permitted by applicable law, the Company Borrower waives all claims, damages, damages and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the Collateral. The Company Borrower agrees that a Secured Party the Lender need not give more than 10 days days' notice (which notification shall be deemed given three Business Days after mailing when mailed by registered or certified mail, return receipt requested, postage prepaid, addressed to the Borrower at its address set forth in Section 12.5 of the Loan Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) The Company Borrower also agrees to pay all reasonable costs of the Lender, including attorneys' fees, incurred with respect to the collection of any of the Obligations and the enforcement of any of its respective rights hereunder.
(d) The Borrower hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Secured Promissory Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Secured Party may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the event Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor, NL or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor or NL where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor, NL or any other Person notice and opportunity for a hearing on Secured Party’s claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Secured Party shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Secured Party deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor and NL further agreesagree, at any Secured Party’s request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a Secured Party shall at a place or places designated by Secured Party which are reasonably selectconvenient to Secured Party, NL and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Until Secured Parties Party is able to effect a sale, lease, license or other disposition of Collateral, Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Secured Party. Secured Party shall have no obligation to Grantor or NL to maintain or preserve the rights of Grantor or NL as against third parties with respect to Collateral while Collateral is in the possession of Secured Party. Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Secured Party’s remedies with respect to such appointment without prior notice or hearing as to such appointment. Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or Obligations as Secured Party shall determine in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationits sole discretion, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company waives Grantor and NL waive all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Collateral except such as arise solely out of the gross negligence or willful misconduct of Secured Party need not give more than 10 as finally determined by a court of competent jurisdiction. Grantor and NL agree that ten (10) days prior notice by Secured Party of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any attorneys’ fees and other expenses incurred by Secured Party is entitledto collect such deficiency. Secured Party acknowledges that the rights and remedies set forth in this Section 8(a) are also reserved to an additional secured party pursuant to the Permitted Additional Lien.
(cb) The Company Except as otherwise specifically provided herein, Grantor and NL hereby waives waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, Grantor and NL acknowledge and agree that it is not commercially unreasonable for the Secured Party (i) to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor or NL, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, or (xi) to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral. Grantor and NL acknowledge that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Party would not be commercially unreasonable in the Secured Party’s exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to Grantor or NL or to impose any duties on Secured Party that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c).
(d) Secured Party shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Secured Party shall not be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder shall be cumulative. To the extent it may lawfully do so, Grantor and NL absolutely and irrevocably waive and relinquish the benefit and advantage of, and covenant not to assert against Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defense they may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given Subject to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any terms of the Collateral shall be subject to Intercreditor Agreements and the subordination provisions contained in the preceding Section 2Guaranty, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Guaranty, the Transaction Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityGuaranteed Obligations, if any Termination Event shall have occurred and is continuing, after thirty (30) days written notice to Grantors, and subject to the terms of the Intercreditor Agreements, Collateral Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, but subject to the Company terms of the Intercreditor Agreements and the Guaranty and such notice, to the extent permitted by law, each Grantor expressly agrees that in any such event, the Secured Partiesevent Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Subject to the terms of the Intercreditor Agreements, the Guaranty and after such notice, Collateral Agent or any Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Collateral Agent and Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby waives and releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Collateral Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Collateral Agent deems necessary or advisable. Subject to the terms of the Intercreditor Agreements and the Guaranty, if any Termination Event shall have occurred and is continuing, each Grantor further agrees, after such notice, at any Secured PartyCollateral Agent’s request, to assemble the Collateral, Collateral and make it available to one Collateral Agent at a place or more of the Secured Parties at places designated by Collateral Agent which a Secured Party shall are reasonably selectconvenient to Collateral Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Subject to the terms of the Intercreditor Agreements, after such notice, until Collateral Agent is able to effect a sale, lease, or other disposition of Collateral, Collateral Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Collateral Agent. Collateral Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Collateral Agent. Subject to the terms of the Intercreditor Agreements, Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Collateral Agent’s remedies (for the benefit of Collateral Agent and Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Guaranteed Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationReceivables Financing Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need Collateral Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Collateral Agent or any Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Collateral Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Guaranteed Obligations, including any attorneys’ fees and other expenses incurred by Collateral Agent or any Secured Party is entitledto collect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Collateral Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Collateral Agent (i) to fail to incur expenses reasonably deemed significant by Collateral Agent to prepare Collateral for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to Collateral Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Collateral Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by Collateral Agent would not be commercially unreasonable in Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Collateral Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither Collateral Agent nor the Secured Parties shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Guaranteed Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefore or any direct or indirect guarantee thereof. Neither Collateral Agent nor the Secured Parties shall be required to marshal the Collateral or any guarantee of the Guaranteed Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Transaction Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Collateral Agent or any Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Subordinated Guarantor Security Agreement (Asta Funding Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2not otherwise timely cured, any Secured Party VMR may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Partiesevent VMR, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ VMR's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party VMR shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company hereby releases. The Company further agrees, at any Secured Party’s VMR's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties VMR at places which a Secured Party VMR shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties VMR shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 8(d) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable liable, as expressly provided in the Financing Agreement only, for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties VMR of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need VMR account for the surplus, if any, to Company. To the maximum extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties VMR arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or wilful misconduct of VMR. The Company agrees that a Secured Party VMR need not give more than 10 days ten (10) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to Company at its address referred to in Section 12 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable liable, as expressly provided in the Financing Agreement only, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party VMR is entitled, Company also being liable, as expressly provided in the Financing Agreement only, for the reasonable fees of any attorneys employed by VMR to collect such deficiency.
(b) Company also agrees to pay all costs of VMR, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder to the extent VMR is adjudicated to be entitled to such enforcement.
(c) The Company hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by VMR in the following order of priorities: first, to VMR in an amount sufficient to pay in full the reasonable expenses of VMR in connection with such sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by VMR in connection therewith, including, without limitation, reasonable attorney's fees; second, to VMR in an amount equal to the then unpaid principal of and accrued interest and prepayment premiums, if any, expressly due pursuant to the Financing Agreement; and finally, upon payment in full of all of the obligations outstanding and expressly due pursuant to the Financing Agreement, to pay to Company, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(scontinuing:
(i) to be due and payable (or such amounts shall have automatically, become due and payable), all All payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured PartiesParty, shall be segregated from other funds of the Company and shall, if requested by any Secured Party shall forthwith upon receipt by the Company Company, be turned over to the Secured PartiesParty, in the same form as received by the Company (duly endorsed by the Company to the Secured PartiesParty, if required); and
(ii) Any and all such payments so received by the Secured Party (whether from the Company or otherwise) may, in the sole discretion of the Secured Party, be held by the Secured Party as collateral security for, and/or then or at any time thereafter applied in whole or in part by the Secured Party, against all or any part of the Obligations in such order as the Secured Party may elect. Any balance of such payments held by the Secured Party and remaining after payment in full of all the Obligations shall be paid over to the Company or to whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing and subject to continuing, the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company expressly agrees that in any such eventupon the occurrence of an Event of Default, the Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice as specified below of time and place of public or private salebelow) to or upon the Company or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the extent permitted by law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Party' s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each If any consent, approval or authorization of, or filing with, any governmental authority or any other Person should be necessary to effectuate any sale or other disposition of the Collateral, or any partial disposition of the Collateral, the Company agrees to execute all such applications and other instruments as may be required in connection with securing any such consent, approval or authorization, and will otherwise use its best efforts to secure the same. The Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, redemption which right or equity of redemption the Company hereby waives and releases. The Company further agrees, at any the Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at such places which a the Secured Party shall reasonably may select, whether at the Company's premises or elsewhere. The Secured Parties shall Party may apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties Party hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as the Secured Party may elect, the Company remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over applying such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need the Secured Party account for the surplus, if any, to the Company. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days that, to the extent notice of sale shall be required by law, five (5) Business Days' notice to the Company (which notification shall be deemed given when mailed, postage prepaid, addressed to the Company at its address set forth in Section 10.4 of the Note Purchase Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is shall constitute reasonable notification of such matters. No notification need be given to the Company if the Company, after the occurrence of a Default, has signed a statement renouncing or modifying any right to notification of sale or other intended disposition. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a the Secured Party is entitled, the Company also being liable for the fees of any attorneys employed by the Secured Party to collect such deficiency.
(c) The Company also agrees to pay all costs of the Secured Party, including reasonable attorneys' fees and disbursements, incurred with respect to the collection of any of the Obligations and the enforcement of any of its rights hereunder.
(d) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Security Agreement (Sytron Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Agent deems necessary or advisable.
(b) If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except to the extent such claims, damages and demands result from the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any reasonable attorneys’ fees and other reasonable out-of-pocket expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(e) Neither Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor the Lenders shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Westaff Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party To facilitate the foregoing, upon the occurrence and during the continuance of an Event of Default, Agent shall have the right to take possession of Grantor’s original books and records, to obtain access to Grantor’s data processing equipment, computer hardware and Software and to use all of the foregoing and the information contained therein in any manner which Agent deems appropriate. Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Without limiting the foregoing, Agent shall also have the right to require that Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain the Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such sale, lease, license, other disposition of, or any collection, recovery, receipt, appropriationor realization on, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental the Collateral to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law. To , need Agent account for the extent permitted by applicable lawsurplus, the Company waives all claimsif any, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.to
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to 5.1 If any other rights given to the Secured Parties hereunder, if an Event default or event of Default default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due Notes or hereunder, Secured Parties may, and payable (or such amounts shall have automatically, become due and payable), all payments received by at the Company under or in connection with any request of the Collateral shall be subject to the subordination provisions contained Secured Parties holding a majority in the preceding Section 2principal amount of Notes then outstanding, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it them in this Security Agreement or and in any other instrument or agreement securing, evidencing evidencing, or relating to the Obligations or at law or in equityDebtors Obligations, all rights and remedies of a secured party under the CodeUCC or under applicable law. Without limiting the generality of the foregoing, the Company Debtor expressly agrees that in any such event, the event Secured Parties, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtor or any other person (all and each of which demands, advertisements, and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, and realize upon the Trademark Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said such Trademark Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Party's offices or elsewhere at such prices price as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Parties shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said such Trademark Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtor hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 5.4 hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company Debtor remaining liable for any deficiency remaining unpaid after the such application, and only . Only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law, including section 9615(a)(3) of the UCC, need Secured Parties account for the surplus, if any, to Debtor. To the maximum extent permitted by applicable law, the Company Debtor waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention retention, or sale of the CollateralTrademark Collateral except such as arise out of the gross negligence or willful misconduct of any Secured Party. The Company Debtor agrees that a Secured Party Parties need not give more than 10 days twenty (20) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to Debtor at its address referred to in SECTION 9 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Trademark Collateral are insufficient to pay all amounts to which a Secured Party is Parties are entitled, Debtor also being liable for the fees of any attorneys employed by Secured Parties to collect such deficiency.
(c) The Company 5.2 Debtor also agrees to pay all costs of Secured Parties, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
5.3 Debtor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Trademark Collateral.
5.4 The proceeds of any sale, disposition, or other realization upon all or any part of the Trademark Collateral shall be distributed by Secured Parties in the following order: first to payment in full of all the Debtor's Obligations and then to pay to the Debtor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such proceeds.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (ai) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(scontinuing:
(a) to be due and payable (or such amounts shall have automatically, become due and payable), all All payments received by the Company Debtor under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company Debtor in trust for the Secured PartiesBank, shall be segregated from other funds of the Company Debtor and shall, if requested by any Secured Party shall forthwith upon receipt by the Company Debtor, be turned over to the Secured PartiesBank, in the same form as received by the Company Debtor (duly endorsed by the Company Debtor to the Secured PartiesBank, if required); and
(b) Any and all such payments so received by the Bank (whether from the Debtor or otherwise) shall, in the sole discretion of the Bank, be held by the Bank as collateral security for, and/or then or at any time thereafter applied in whole or in part by the Bank, against all or any part of the Obligations in such order as the Bank shall elect. Any balance of such payments held by the Bank and remaining after payment in full of all of the Obligations shall be paid over to the Debtor or to whomsoever may be lawfully entitled to receive the same.
(bii) If any Event of Default shall occur and be continuing and subject to continuing, the subordination provisions of the preceding Section 2, any Secured Party Bank may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityobligations, all rights and remedies of a secured party under the applicable Uniform Commercial Code. Without limiting the generality of the foregoing, the Company Debtor expressly agrees that in any such event, event the Secured PartiesBank, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, receive appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ Bank's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Bank shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemptionredemption in the Debtor, which right or equity of redemption the Company is hereby releasesexpressly released. The Company Debtor further agrees, at any Secured Party’s the Bank's written request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether Bank at the CompanyDebtor's premises or elsewherePremises. The Secured Parties Bank shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties Bank hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as the Company Bank may elect, the Debtor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Bank of any other amount required by any provision of law, including Section 9-504(l)(c) of the applicable Uniform Commercial Code, (or any successor or substitute provision) need the Bank account for the surplus, if any, to the Debtor. To the extent permitted by applicable law, the Company Debtor waives all claims, damages, and demands against the Secured Parties Bank arising out of the repossession, retention or sale of the Collateral, except for the gross negligence or willful misconduct of the Bank. The Company Debtor agrees that a Secured Party need not the Bank shall give more than 10 days at least twenty (20) days' notice (which notification shall be deemed given when mailed, postage prepaid, addressed to the Debtor at its address set forth in Paragraph 16 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party the Bank is entitled, the Debtor also being liable for the reasonable fees of any attorneys employed by the Bank to collect such deficiency.
(ciii) The Company Debtor also agrees to pay all reasonable costs of the Bank, including attorneys' fees, incurred with respect to the collection of any of the Obligations and the enforcement of any of the Bank's rights hereunder.
(iv) The Debtor hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Equipment Line of Credit/Term Loan Agreement (Diagnostic Retrieval Systems Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in it, subject to the terms of the ABL Intercreditor Agreement, under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations or pursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Collateral Agent may, with the consent of the Required Lenders, and shall, at law or in equitythe direction of the Required Lenders, exercise all rights and remedies of a secured party under the CodeUniform Commercial Code of any applicable jurisdiction. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesCollateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Collateral Agent or any of the other Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Collateral Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Collateral Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Collateral Agent deems necessary or advisable.
(b) Subject to the terms of the ABL Intercreditor Agreement, each Grantor further agrees, at any Secured Partythe Collateral Agent’s requestwritten request following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Collateral Agent is able to effect a sale, lease, or other disposition of the Collateral, while an Event of Default is continuing, the Collateral Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Collateral Agent in furtherance of exercising its rights and remedies hereunder. The Collateral Agent shall have no obligation to (i) marshal any of the Collateral or (ii) any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Collateral Agent. Upon the occurrence and during the continuation of an Event of Default, Collateral Agent may, with the consent of the Required Lenders, and shall, at the direction of the Required Lenders, if it or they so elect, seek the appointment of a receiver or keeper to take possession of the Collateral and to enforce any of the Collateral Agent’s remedies (for the benefit of the Collateral Agent and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Subject to the terms of the ABL Intercreditor Agreement, if any, the Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses sale of every kind incurred therein or incidental Collateral to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over applying such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need the Collateral Agent account for the surplus, if any, to the applicable Grantor. To Neither the extent permitted by applicable lawCollateral Agent, the Company waives all claimsother Secured Parties, damagesnor any of their officers, and demands against the Secured Parties arising out directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence, bad faith or willful misconduct (as finally determined by a court of the repossession, retention or sale of the Collateralcompetent jurisdiction). The Company Each Grantor agrees that a Secured Party need not give more than 10 days ten (10) days’ prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses incurred by the Collateral Agent or any of the other Secured Parties to which a Secured Party collect such deficiency (to the extent reimbursement is entitledprovided for herein or in the Credit Agreement).
(c) The Company hereby waives presentmentEach Grantor further agrees, demandat the Collateral Agent’s written request following the occurrence and during the continuance of an Event of Default, protest to execute and deliver to Collateral Agent an assignment or any notice (assignments of the registered Intellectual Property or other Collateral owned by a Grantor and such other documents as are necessary or appropriate to carry out the intent and purposes hereof to the extent permitted by such assignment does not result in any loss of rights therein under applicable lawLaw.
(d) of any kind To the extent that applicable law imposes duties on the Collateral Agent to exercise remedies in connection with this Security Agreement a commercially reasonable manner, each Grantor acknowledges and agrees (pursuant to Section 9-603 or any Collateral.other applicable provision of the UCC) that it is not commercially unreasonable for the Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition or to postpone any such disposition pending any such preparation or processing; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain
Appears in 1 contract
Samples: Term Loan Security Agreement (ProFrac Holding Corp.)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent or any Lender or any Selected Revolving Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent, the Lenders and the Selected Revolving Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on such Grantor’s premises or elsewhere and shall have the right to use such Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s request, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Secured Parties Agent shall have no obligation to such Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Agent’s remedies (for the benefit of the Beneficiaries), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company such Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Such Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Such Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses incurred by the Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as from time to time amended (the “Securities Act”), and applicable state securities laws, the Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral conducted without prior registration or qualification of such Pledged Collateral under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private placement may be at prices and on terms less favorable than those obtainable through a sale without such restrictions (including, without limitation, an offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances and the registration rights granted to the Agent by such Grantor pursuant to Section 28(d) hereof, such Grantor agrees that any such private placement shall not be deemed, in and of itself, to be commercially unreasonable and that the Agent shall have no obligation to delay the sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register it for a form of sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Agent determines to exercise its right to sell any or all of the Pledged Collateral, upon written request, each Grantor shall and shall cause each issuer of any Pledged Interests to be sold hereunder from time to time to furnish to the Agent all such information as the Agent may request in order to determine the amount of Pledged Collateral that may be sold by the Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
(d) If the Agent shall determine to exercise its right to sell all or any of the Pledged Collateral, each Grantor agrees that, upon request of the Agent (which request may be made by the Agent in its sole discretion), such Grantor will, at its own expense:
(i) execute and deliver, and cause each issuer of the Pledged Collateral contemplated to be sold and the directors and officers thereof to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Agent, advisable to register such Pledged Collateral under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectus which, in the opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under all applicable state securities or “Blue Sky” laws and to obtain all necessary governmental approvals for the sale of the Pledged Collateral, as requested by the Agent;
(iii) cause each such issuer to make available to its security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act;
(iv) do or cause to be done all such other acts and things as may be necessary to make such sale of the Pledged Collateral or any part thereof valid and binding and in compliance with applicable law; and
(v) bear all costs and expenses, including reasonable attorneys’ fees, of carrying out its obligations under this Section 28(d).
(e) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(f) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as the such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Such Grantor acknowledges that the purpose of this Section 28(f) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 28(f). Without limitation upon the foregoing, nothing contained in this Section 28(f) shall be construed to grant any rights to such Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 28(f).
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur have occurred and be continuing and subject to continuing, the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of each Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on the Secured Party's claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for its benefit, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Party shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use each Grantor's premises without charge for such time or times as the Secured Party deems necessary or advisable. Each Grantor further agrees, if any Event of Default shall have occurred and be continuing, at any the Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at places which a the Secured Party shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. Until the Secured Party is able to effect a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Party. The Secured Parties Party shall apply the net proceeds of have no obligation to any such collection, recovery, receipt, appropriation, realization Grantor to maintain or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part possession of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.the
Appears in 1 contract
Samples: Security Agreement (Wilsons the Leather Experts Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Loan Agreement, the other Loan Documents, and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Initial Lender may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesInitial Lender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company each Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving each Grantor or any other Person notice and opportunity for a hearing on the Initial Lender’s claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each of the Company Grantors hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Initial Lender shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as the Initial Lender deems necessary or advisable. Each Grantor further agrees, at any Secured Party’s requestthe request of the Initial Lender, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Initial Lender at places which a Secured Party the Initial Lender shall reasonably select, whether at the Company's such Grantor’ premises or elsewhere. Until the Initial Lender is able to effect a sale, lease, or other disposition of Collateral, the Initial Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Initial Lender. The Secured Parties Initial Lender shall have no obligation to either Grantor to maintain or preserve the rights of either Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Initial Lender. The Initial Lender may seek the appointment of a receiver or keeper to take possession of Collateral and to enforce all remedies with respect to such appointment without prior notice or hearing as to such appointment. The Initial Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Initial Lender of any other amount required by any provision of law, need the Initial Lender account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, each of the Company Grantors waives all claims, damages, and demands against the Initial Lender and the other Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except to the extent such arise out of the gross negligence or willful misconduct of such Person. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Initial Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any reasonable attorneys’ fees actually incurred and reasonable other expenses actually incurred by the Initial Lender and the other Secured Parties to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Subsidiary Security Agreement (Sunlink Health Systems Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Second Amended Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Obligors expressly agrees agree that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company an Obligor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of any Obligor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving an Obligor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Obligor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on the premises of any Obligor or elsewhere and shall have the right to use any Obligor’s premises without charge for such time or times as Agent deems necessary or advisable.
(b) Upon the occurrence and during the continuance of an Event of Default, each Obligor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Borrower, whether at the Company's an Obligor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Obligor to maintain or preserve the rights of an Obligor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Upon the occurrence and during the continuance of an Event of Default, Agent may, if it so elects, seek the appointment of one or more receivers or other custodians to take possession of any or all of the Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders) with respect to any such appointment without prior notice or hearing as to any such appointment. Upon the occurrence and during the continuance of an Event of Default, Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationSecond Amended Credit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Borrower. To Upon the occurrence and during the continuance of an Event of Default, to the maximum extent permitted by applicable law, the Company each Obligor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Obligor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Obligors shall remain jointly and severally liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including reasonable attorneys’ fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Obligor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The net cash proceeds resulting from the collection, liquidation, sale, lease or other disposition of the Collateral shall be applied first to the expenses (including all attorneys’ fees) of retaking, holding, storing, processing and preparing for sale, selling, collecting, liquidating and the like, and then to the satisfaction of all Obligations in accordance with the terms of the Second Amended Credit Agreement. Each Obligor shall be liable to Agent and the Lenders and shall pay to Agent and the Lenders, on demand, any deficiency which may remain after such sale, disposition, collection or liquidation of the Collateral. Agent shall remit to such Obligors or other Person entitled thereto any surplus remaining after this Agreement has been terminated in accordance with Section 25(f) hereof.
(e) If an Event of Default under the Second Amended Credit Agreement has occurred and is continuing: (i) Agent shall have for the benefit of the Lenders, in addition to all other rights of Agent and the Lenders, the rights and remedies of a secured party under the Loan Documents and the UCC; and (ii) Agent may sell and deliver any Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as Agent deems advisable, in its sole discretion, and may, if Agent deems it reasonable, postpone or adjourn any sale of the Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, each Obligor agrees that any notice by Agent of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable notice to each Obligor if such notice is mailed by registered or certified mail, return receipt requested, postage prepaid, or is delivered personally against receipt, at least ten (10) days prior to such action to the Borrower’s address specified in or pursuant to Section 13.8 of the Second Amended Credit Agreement. If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until Agent or the Lenders receive payment, and if the buyer defaults in payment, Agent may resell the Collateral without further notice to the Borrower or any Obligor. Agent is hereby granted a license or other right to use, without charge, each Obligor’s labels, patents, copyrights, name, trade secrets, trade names, trademarks, and advertising matter, or any similar property, in completing production of, advertising or selling any Collateral, and each Obligor’s rights under all licenses and all franchise agreements shall inure to Agent’s benefit for such purpose.
Appears in 1 contract
Samples: Security Agreement (Applica Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk, and may exercise, to the exclusion of the Grantor thereof (and while any such Event of Default such Grantor shall not exercise) all voting, consent and other rights in respect of any Stock in which a security interest is granted herein and to demand and receive to the exclusion of the Grantor thereof all distributions in respect of such Stock (and while any such Event of Default is continuing such Grantor shall not be entitled to receive or retain and shall turn over to Agent any such distributions). Each Secured Party To facilitate the foregoing, Agent shall have the right to take possession of each Grantor’s original books and records, to obtain access to each Grantor’s data processing equipment, computer hardware and Software and to use all of the foregoing and the information contained therein in any manner which Agent deems appropriate. Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such sale, lease, license, other disposition of, or any collection, recovery, receipt, appropriationor realization on, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental the Collateral to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior written notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any reasonable attorneys’ fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c).
(d) Neither Agent nor any Lender shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Lender shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Golfsmith International Holdings Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Loan Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing evidencing, or relating to any of the Obligations (but subject to the terms of such instruments or at law or in equityagreements), if any Event of Default shall have occurred and be continuing, the Lender may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements, and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help (provided there is no breach of the peace), without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on the Lender’s claim or action and may collect, receive, appropriate assemble, process, appropriate, and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Lender, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releasesreleases (it being understood that such purchase shall terminate the obligations of the Guarantor pursuant to Section 2.7 of the Loan Agreement). Such sales may be adjourned and continued from time to time with or without notice. The Company Lender shall have the right to conduct such sales on the Grantor’s premises or elsewhere and shall have the right to use the Grantor’s premises without charge for such time or times as the Lender deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Grantor further agrees, at any Secured Partythe Lender’s request, to assemble the Collateral, Collateral and make it available to one the Lender at a place or more of places designated by the Secured Parties at places Lender which a Secured Party shall are reasonably selectconvenient to the Lender and the Grantor, whether at the Company's Grantor’s premises or elsewhere. Until the Lender is able to effect a sale, lease, or other disposition of Collateral, the Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Lender. The Secured Parties Lender shall not have any obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to any Collateral while such Collateral is in the possession of the Lender. The Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Lender’s remedies (for the benefit of the Lender and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. The Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationLoan Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Lender of any other amount required by any provision of law, need the Lender account for the surplus, if any, to the Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention retention, or sale of the CollateralCollateral except to the extent that such arise out of the gross negligence or willful misconduct of the Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 days prior notice by the Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by the Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Grantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Lender to exercise remedies in a best manner, the Grantor acknowledges and agrees that it is not commercially unreasonable for the Lender (i) to fail to incur expenses reasonably deemed significant by the Lender to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment; (xi) to purchase insurance or credit enhancements to insure the Lender against risks of loss, collection or disposition of Collateral or to provide to the Lender a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Lender, to obtain the services of other brokers, investment bankers, consultants, and other professionals to assist the Lender in the collection or disposition of any of the Collateral. The Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Lender would not be commercially unreasonable in the Lender’s exercise of remedies against the Collateral and that other actions or omissions by the Lender shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to the Grantor or to impose any duties on the Lender that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) The Lender shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor, or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Lender shall not be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, the Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Lender, any valuation, stay, appraisement, extension, redemption, or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order, or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an or Event of Default shall occur and be continuing continuing, Pledgee may (on behalf of and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust as agent for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under -------------------------------------------------------------------------------- SECURITY AGREEMENT - Page 11 (Take-Two Interactive Software, Inc.) the CodeUCC. Without limiting the generality of the foregoing, the Company Borrower expressly agrees that in any such event, the Secured Partiesevent Pledgee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Borrower or any other person Person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Pledgee's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Pledgee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Borrower hereby releases. The Company Borrower further agrees, at any Secured Party’s Pledgee's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Pledgee at places which a Secured Party Pledgee shall reasonably select, whether at the CompanyBorrower's premises or elsewhere. The Secured Parties Pledgee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 8(d) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company Borrower remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Lender of any other amount required by any provision of law, including Section 9-504 of the UCC, need Lender account for the surplus, if any, to Borrower. To the maximum extent permitted by applicable law, the Company Borrower waives all claims, damages, and demands against the Pledgee or any Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Pledgee. The Company Borrower agrees that a Secured Party the Pledgee need not give more than 10 days ten days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to Borrower at its address referred to in Section 12 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Borrower shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Parties are entitled, Borrower also being liable for the reasonable fees of any attorneys employed by Pledgee or any Secured Party is entitledto collect such deficiency.
(b) Borrower also agrees to pay all costs of Pledgee and Secured Parties, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Borrower hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Pledgee in the following order of priorities: -------------------------------------------------------------------------------- SECURITY AGREEMENT - Page 12 (Take-Two Interactive Software, Inc.) first, to Pledgee in an amount sufficient to pay in full the expenses of Pledgee and Secured Parties in connection with such sale, disposition or other realization, including all reasonable expenses, liabilities and advances incurred or made by Pledgee in connection therewith, including, without limitation, reasonable attorney's fees; second, to Pledgee or Secured Parties in an amount equal to the then unpaid principal of and accrued interest and prepayment premiums, if any, on the Secured Obligations; third, to Pledgee or Secured Parties in an amount equal to any other Secured Obligations which are then unpaid; and finally, upon payment in full of all of the Secured Obligations, to pay to Borrower, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
Samples: Security Agreement (Take Two Interactive Software Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to Upon and after the Secured Parties hereunder, if occurrence of an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equity, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoingDefault, the Company expressly agrees that in any such event, the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of any public or private sale) to or upon the Company Pledgor or any other person Person (all of which are, to the extent permitted by law, hereby expressly waived), forthwith may forthwith collect, receive, appropriate and realize upon the Collateral, Collateral or any part thereof, and/or and may forthwith sell, lease, assign, give option or options to purchasesell forthwith, or agree to sell or otherwise dispose of and deliver said deliver, the Collateral (or contract to do so), or any part thereofthereof or interest therein, in one or more parcels at public or private sale or sales, at any exchange exchange, broker's board or at any of the Secured Parties’ Lender's offices or elsewhere elsewhere, at such prices and on such terms (including, without limitation, any terms required by a sale described in Paragraph 6 above) as it may deem best, for cash or on credit credit, or for future delivery without assumption of any credit risk. Each Secured Party shall have , with the right of the Lender or any purchaser to purchase upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said the Collateral so sold, free of any right or equity of redemptionredemption in the Pledgor, which right or equity of redemption the Company is hereby releasesexpressly waived and released. The Company further agrees, Lender may purchase all or any part of the Collateral at any Secured Party’s request, to assemble the Collateral, make it available to one public or more private sale. Any excess of the Secured Parties at places which a Secured Party Collateral after payment in full of the obligations shall reasonably select, whether at be delivered to the Company's premises or elsewhere. Pledgor.
(b) The Secured Parties shall apply the net proceeds of any such collectiondisposition or other action by the Lender shall be applied as follows:
(1) First, recovery, receipt, appropriation, realization or sale, after deducting all reasonable to the costs and expenses of every kind incurred therein in connection therewith or incidental thereto or to the care, safe keeping care or otherwise safekeeping of any or all of the Collateral or in any way relating to the rights of the Secured Parties Lender hereunder, including reasonable attorneys' fees and legal expenses;
(2) Second, to the satisfaction of the Obligations;
(3) Third, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount amounts required by any provision applicable law (including, without limitation, Section 9-504(1)(c) of law. To the Uniform Commercial Code); and
(4) Fourth, to the Pledgor to the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. any surplus proceeds.
(c) The Company agrees that a Secured Party Lender need not give more than 10 days 15 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such place, which notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitledPledgor hereby deems reasonable.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Loan Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Administrative Agent may exercise all rights and remedies of a secured party under the CodeUCC or any other applicable law. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesAdministrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company applicable Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Administrative Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Administrative Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Administrative Agent and the Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Administrative Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as the Administrative Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Party’s requestthe Administrative Agent's request during an Event of Default, to assemble the Collateral, Collateral in which it granted a security interest hereunder to the Administrative Agent and make it available to one or more of the Secured Parties Administrative Agent at places which a Secured Party the Administrative Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. Until the Administrative Agent is able to effect a sale, lease or other disposition of the Collateral, the Administrative Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Administrative Agent. The Secured Parties Administrative Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral in which it granted a security interest hereunder to the Administrative Agent while such Collateral is in the possession of the Administrative Agent. The Administrative Agent may, if the Administrative Agent so elects, seek the appointment of a receiver or keeper to take possession of any of the Collateral and to enforce any of the Administrative Agent's remedies (for the benefit of the Administrative Agent and the Lenders), with respect to such appointment without prior notice or hearing as to such appointment. The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein in connection therewith or incidental to the care, safe keeping care or otherwise safekeeping of any or all of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties Administrative Agent and the Lenders hereunder, including including, without limitation, reasonable attorneys' fees and legal expensesdisbursements, to the payment Obligations as provided in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationLoan Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the UCC, need the Administrative Agent account for the surplus, if any, to the applicable Grantors. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, damages and demands against the Secured Parties Administrative Agent or any Lender arising out of the repossession, retention or sale of any of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Administrative Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Administrative Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall Grantors shall, jointly and severally, remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by the Administrative Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company If an Event of Default shall have occurred and be continuing, the Administrative Agent may (without assuming any obligations or liability thereunder), at any time, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the applicable Grantor in, to and under any one or more license agreements with respect to the Intellectual Property, and take or refrain from taking any action under any thereof, and each Grantor hereby releases the Administrative Agent and each Lender from, and agrees to hold the Administrative Agent and each Lender free and harmless from and against any claims arising out of, any action taken or omitted to be taken with respect to any such license agreement.
(d) In the event of any license, assignment, sale or other disposition of the Intellectual Property, or any of it, after the occurrence or continuation as hereinabove provided of an Event of Default, each Grantor shall use commercially reasonable efforts to supply its know how and expertise relating to the manufacture and sale of the products bearing or in connection with the Intellectual Property of such Grantor, and its customer lists and other records relating to the Intellectual Property of such Grantor and to the distribution of said products, to the Administrative Agent or its designee.
(e) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral. Without limiting any of the foregoing, each Grantor, to the maximum extent not prohibited by applicable law, hereby (i) agrees that it will not invoke, claim or assert the benefit of any rule of law or statute now or hereafter in effect (including, without limitation, any right to prior notice or judicial hearing in connection with the Administrative Agent's possession, custody or disposition of any Collateral or any appraisal, valuation, stay, extension, moratorium or redemption law), or take or omit to take any other action, that would or could reasonably be expected to have the effect of delaying, impeding or preventing the exercise of any rights and remedies in respect of the Collateral, the absolute sale of any of the Collateral or the possession thereof by any purchaser at any sale thereof, and waives the benefit of all such laws and further agrees that it will not hinder, delay or impede the execution of any power granted hereunder to the Administrative Agent, but that it will permit the execution of every such power as though no such laws were in effect, (ii) waives all rights that it has or may have under any rule of law or statute now existing or hereafter adopted to require the Administrative Agent to marshal any Collateral or other assets in favor of such Grantor or any other party or against or in payment of any or all of the Obligations, and (iii) waives all rights that it has or may have under any rule of law or statute now existing or hereafter adopted to require the Administrative Agent to pursue any third party for any of the Obligations.
Appears in 1 contract
Samples: Security Agreement (Gentek Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as Agent deems necessary or advisable.
(b) Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the CompanyGrantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 days ten (10) Business Days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Grantor acknowledges that the purpose of this Section 23(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 23(d). Without limitation upon the foregoing, nothing contained in this Section 23(d) shall be construed to grant any rights to Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 23(d).
Appears in 1 contract
Samples: Security Agreement (3com Corp)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityGrantor Obligations, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodePPSA. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in if any such eventEvent of Default have occurred and be continuing, the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the PPSA and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Agent or any Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Subject to the terms of the Intercreditor Agreement, the Agent shall have the right to conduct such sales on the Grantor’s premises or elsewhere and, in connection with such sales, shall have the right to use the Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) The Company Grantor further agrees, at any Secured Partythe Agent’s requestrequest only after an Event of Default has occurred and is continuing, to assemble assemble, or to direct the Collateral, Collateral in which it has granted a security interest hereunder to the Agent and make it available to one or more of the Secured Parties Agent at places which a Secured Party the Agent shall reasonably select, whether at the Company's Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease or other disposition of the Collateral, the Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent shall have no obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to the Collateral in which it granted a security interest hereunder to the Agent while such Collateral is in the possession of the Agent. The Agent may, if the Agent so elects, appoint a receiver or a receiver and manager (both of which are herein called a “Receiver”) to take possession of any of the Collateral and to enforce any of the Agent’s remedies (for the benefit of the Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Any such Receiver is hereby given and shall have the same powers and rights and exclusions and limitations of liability as the Agent has under this Security Agreement, at law or in equity. In exercising any such powers, any such Receiver shall, to the extent permitted by law, act as and for all purposes shall be deemed to be the agent of the Grantor and the Agent shall not be responsible for any act or default of any such Receiver. The Agent may appoint one or more Receivers hereunder and may remove any such Receiver or Receivers and appoint another or others in his or their stead from time to time. Any Receiver so appointed may be an officer or employee of the Agent. A court need not appoint, ratify the appointment by the Agent of or otherwise supervise in any manner the actions of any Receiver. After an Event of Default has occurred and is continuing, and upon the Grantor receiving notice from the Agent of the taking of possession of the Collateral or the appointment of a Receiver, all powers, functions, rights and privileges of each of the directors and officers of the Agent with respect to the Collateral shall cease, unless specifically continued by the written consent of the Agent. After an Event of Default has occurred and is continuing and upon the exercise of remedies pursuant hereto, the Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Grantor Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, shall the Agent be required to account for the surplus, if any, to the Grantor. To After an Event of Default has occurred and is continuing, to the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, damages and demands against the Agent or any Secured Parties Party arising out of the repossession, retention or sale of any of the CollateralCollateral in accordance with the terms hereof except such as arise solely out of the gross negligence, bad faith or willful misconduct of the Agent or such Secured Party as determined by a final decision of a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 fifteen (15) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a of the Grantor Obligations, including any reasonable legal fees or other expenses incurred by the Agent or any Secured Party is entitledto collect such deficiency, in each case, to the extent required by the Credit Agreement.
(c) The Company Except as otherwise specifically provided herein, the Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable lawlaw and except as otherwise required by the Credit Agreement or this Agreement) of any kind in connection with this Security Agreement or any Collateral. Without limiting any of the foregoing, the Grantor, to the maximum extent not prohibited by applicable law, hereby (i) agrees that it will not invoke, claim or assert the benefit of any rule of law or statute now or hereafter in effect (including, without limitation, any right to prior notice or judicial hearing in connection with the Agent’s possession, custody or disposition of any Collateral or any appraisal, valuation, stay, extension, moratorium or redemption law), or take or omit to take any other action, that would or could reasonably be expected to have the effect of delaying, impeding or preventing the exercise of any rights and remedies in respect of the Collateral, the absolute sale of any of the Collateral or the possession thereof by any purchaser at any sale thereof, and waives the benefit of all such laws and further agrees that it will not hinder, delay or impede the execution of any power granted hereunder to the Agent, but that it will permit the execution of every such power as though no such laws were in effect, except that notwithstanding anything to the contrary in this paragraph “(i)” the parties hereto agree that prior to an Event of Default that is continuing, the Grantor is permitted to deal with the Collateral in the ordinary course of business of the Grantor, (ii) waives all rights that it has or may have under any rule of law or statute now existing or hereafter adopted to require the Agent to marshal any Collateral or other assets in favour of the Grantor or any other party or against or in payment of any or all of the Grantor Obligations, and (iii) waives all rights that it has or may have under any rule of law or statute now existing or hereafter adopted to require the Agent to pursue any third party for any of the Grantor Obligations.
(d) Without limiting the foregoing, the Grantor further agrees, upon the occurrence and during the continuance of an Event of Default, the Agent may (without assuming any obligations or liability thereunder, at any time, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Grantor in, to and under any one or more licence agreements with respect to the Collateral in which the Grantor has granted a security interest hereunder in favour of the Agent, and take or refrain from taking any action under any thereof, and the Grantor hereby releases the Agent and each Secured Party from, and agrees to hold the Agent and each Secured Party free and harmless from and against any claims arising out of, any action taken or omitted to be taken with respect to any such licence agreement.
(e) In the event of any licence, assignment, sale or other disposition of the Collateral, or any of it, after the occurrence and during the continuance of an Event of Default, the Grantor shall supply (without payment of royalty or other compensation to the Grantor) its know-how and expertise relating to the manufacture and sale of the products bearing or in connection with the Proprietary Rights of the Grantor, and its customer lists and other records relating to the Proprietary Rights of the Grantor and to the distribution of said products, to the Agent or its designee in each case, unless directed to do otherwise pursuant to the terms of the Intercreditor Agreement.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Secured Promissory Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Secured Party may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the event Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor, NL or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor or NL where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor, NL or any other Person notice and opportunity for a hearing on Secured Party's claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Secured Party shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as Secured Party deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor and NL further agreesagree, at any Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a Secured Party shall at a place or places designated by Secured Party which are reasonably selectconvenient to Secured Party, NL and Grantor, whether at the CompanyGrantor's premises or elsewhere. The Until Secured Parties Party is able to effect a sale, lease, license or other disposition of Collateral, Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Secured Party. Secured Party shall have no obligation to Grantor or NL to maintain or preserve the rights of Grantor or NL as against third parties with respect to Collateral while Collateral is in the possession of Secured Party. Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Secured Party's remedies with respect to such appointment without prior notice or hearing as to such appointment. Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or Obligations as Secured Party shall determine in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationits sole discretion, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company waives Grantor and NL waive all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Collateral except such as arise solely out of the gross negligence or willful misconduct of Secured Party need not give more than 10 as finally determined by a court of competent jurisdiction. Grantor and NL agree that ten (10) days prior notice by Secured Party of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any attorneys' fees and other expenses incurred by Secured Party is entitledto collect such deficiency. Secured Party acknowledges that the rights and remedies set forth in this Section 8(a) are also reserved to an additional secured party pursuant to the Permitted Additional Lien.
(cb) The Company Except as otherwise specifically provided herein, Grantor and NL hereby waives waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, Grantor and NL acknowledge and agree that it is not commercially unreasonable for the Secured Party (i) to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor or NL, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather thanretail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, or (xi) to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral. Grantor and NL acknowledge that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Party would not be commercially unreasonable in the Secured Party's exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to Grantor or NL or to impose any duties on Secured Party that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c).
(d) Secured Party shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Secured Party shall not be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder shall be cumulative. To the extent it may lawfully do so, Grantor and NL absolutely and irrevocably waive and relinquish the benefit and advantage of, and covenant not to assert against Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defense they may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Secured Parties may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of Grantor where any Collateral is located through selfhelp, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on the Secured Parties' claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Parties shall have the right to conduct such sales on Grantor's premises or elsewhere and shall have the right to use Grantor's premises without charge for such time or times as the Secured Parties deems necessary or advisable.
(b) Grantor further agrees, at any the Secured Party’s Parties' request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a the Secured Party Parties shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. Until the Secured Parties are able to effect a sale, lease, or other disposition of Collateral, the Secured Parties shall have the right to hold or use Collateral, or any part thereof, to the extent that deemed appropriate by the Secured Parties for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Parties. The Secured Parties may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties' remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale ratably to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties of any other amount required by any provision of law, need the Secured Parties account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against any of the Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Secured Parties or any of the Secured Parties as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a ten (10) days prior notice by the Secured Party need not give more than 10 days notice Parties of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by any of the Secured Parties to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The provisions of this Section are subject to the provisions of Section 26.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents, and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or Obligations, if any Event of Default shall have occurred and be continuing, Agent may, and, in any event, Agent at law or in equitythe direction of the Requisite Lenders shall, exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to request and at the direction of the Requisite Lenders shall assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The If an Event of Default is continuing, until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed reasonably appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Maranon Agent may, when an Event of Default is continuing, if it so elects or if Agent is so directed by the Requisite Lenders, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of the Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts outstanding Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, to the maximum extent permitted by applicable law, each Grantor hereby waives presentment, demand, protest or any notice of the exercise by Agent of any of its rights and remedies with respect to the Collateral in accordance with the terms of this Security Agreement.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) unless required by applicable law or agreement, to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent permitted deemed appropriate by applicable law) the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any kind of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in connection with the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any Collateraldemand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur occurs and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).is continuing:
(ba) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise for the benefit of Secured Party, in addition to all other rights and remedies granted to it in the Loan Documents, in this Security Agreement or Trademark Agreement, and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting UCC.
(b) Secured Party may exercise, with respect to the generality Trademark Collateral, all of the foregoingrights and remedies granted to it under the OI Security Agreement and the Subsidiary Security Agreement with respect to the Collateral (as defined therein).
(c) To the extent that it may lawfully do so, the Company expressly each Grantor agrees that it will not at any time insist upon, plead or in any such eventmanner whatsoever claim or take the benefit or of any appraisement, the Secured Partiesvaluation, without demand of performance stay, extension or other demand, (except the notice specified below of time and place of public or private sale) to or upon the Company or any other person may forthwith collect, receive, appropriate and realize upon the Collateralredemption laws, or any part thereof, and/or may forthwith sell, lease, assign, give option or options law permitting it to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), direct the order in which the Trademarks or any part thereofthereof shall be sold, in one or more parcels at public or private sale or sales, at any exchange broker's board now or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemptiontime hereafter in force, which equity may delay, prevent or otherwise affect the performance or enforcement of redemption this Trademark Agreement or the Company Obligations and hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one expressly waives all benefit or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds advantage of any such collectionlaws and covenants that it will not hinder, recoverydelay or impede the execution of any power granted or delegated to Secured Party in this Trademark Agreement, receipt, appropriation, realization or sale, after deducting all reasonable costs but will suffer and expenses permit the execution of every kind incurred therein or incidental to the care, safe keeping or otherwise of such power as though no such laws were in force.
(d) Each Grantor shall be responsible for any or and all of the Collateral or in any way relating to the rights of the Secured Parties hereunderexpenses, including reasonable attorneys' fees and legal expenses, to the payment in whole incurred or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment paid by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice in protecting or enforcing any rights of Secured Party hereunder. Secured Party shall also have the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient right to pay all amounts to which a other sums deemed necessary or desirable by it for the preservation and protection of the Trademarks, or for the realization thereupon, including taxes, insurance, application and renewal fees, and any other fees or costs. All such sums so paid by Secured Party is entitledshall be "Obligations" within the meaning of this Trademark Agreement, due upon demand.
(c) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Trademark Security Agreement (Outsource International Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk, and may exercise, to the exclusion of the Grantor thereof (and while any such Event of Default such Grantor shall not exercise) all voting, consent and other rights in respect of any Stock in which a security interest is granted herein and to demand and receive to the exclusion of the Grantor thereof all distributions in respect of such Stock (and while any such Event of Default is continuing such Grantor shall not be entitled to receive or retain and shall turn over to Agent any such distributions). Each Secured Party To facilitate the foregoing, Agent shall have the right to take possession of each Grantor's original books and records, to obtain access to each Grantor's data processing equipment, computer hardware and Software and to use all of the foregoing and the information contained therein in any manner which Agent deems appropriate. Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use each Grantor's premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such sale, lease, license, other disposition of, or any collection, recovery, receipt, appropriationor realization on, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental the Collateral to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c).
(d) Neither Agent nor any Lender shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Lender shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Golfsmith International Holdings Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automaticallycontinuing, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Pledgor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith forth-with collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Pledgor hereby releases. The Company Each Pledgor further agrees, at any Secured Party’s the Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party the Agent shall reasonably select, whether at the Companysuch Pledgor's premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 8(d) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company each Pledgor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need the Agent account for the surplus, if any, to such Pledgor. To the maximum extent permitted by applicable law, the Company each Pledgor waives all claims, damages, and demands against the Secured Parties Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of the Agent. The Company Each Pledgor agrees that a Secured Party the Agent need not give more than 10 days ten (10) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to such Pledgor at its address referred to in Section 11 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Pledgor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party the Purchaser is entitled.
, such Pledgor also being liable for the fees of any attorneys employed by the Purchaser to collect such deficiency. In addition to the foregoing, during the existence of any Event of Default, the Agent shall have the right (cx) The Company to obtain an absolute assignment of any General Intangible, (y) to sell, assign, transfer, or convey any General Intangible, or (z) to license any Person to use any General Intangible on terms deemed reasonable by the Agent. Each Pledgor also agrees to pay all costs of the Agent, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder. Each Pledgor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral. The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by the Agent in the following order of priorities: first, to the Agent in an amount sufficient to pay in full the expenses of the Agent in connection with such sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by the Agent in connection therewith, including, without limitation, attorney's fees; second, to the Agent in an amount equal to the then unpaid principal of and accrued interest on the Secured Obligations; third, to the Agent in an amount equal to any other Secured Obligations which are then unpaid; and finally, upon payment in full of all of the Secured Obligations, to pay to each Pledgor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
Samples: Note Purchase Agreement (Impleo LLC)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. Subject to the terms of the Intercreditor Agreement, the Lender shall have and may exercise from time to time the rights and remedies described in this Section 22.
(a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Term Loan Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, the Lender may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Credit Parties expressly agrees agree that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company a Credit Party or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of any Credit Party where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving a Credit Party or any other Person notice and opportunity for a hearing on the Lender’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Credit Parties hereby releasesrelease. Such sales may be adjourned and continued from time to time with or without notice. The Company Lender shall have the right to conduct such sales on the premises of any Credit Party or elsewhere and shall have the right to use any Credit Party’s premises without charge for such time or times as the Lender deems necessary or advisable.
(b) Upon the occurrence and during the continuance of an Event of Default, each Credit Party further agrees, at any Secured Partythe Lender’s request, to assemble the Collateral, Collateral and make it available to one the Lender at a place or more of places designated by the Secured Parties at places Lender which a Secured Party shall are reasonably selectconvenient to the Lender and Borrower, whether at the Company's a Credit Party’s premises or elsewhere. Until the Lender is able to effect a sale, lease, or other disposition of Collateral, the Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Lender. The Secured Parties Lender shall have no obligation to any Credit Party to maintain or preserve the rights of a Credit Party as against third parties with respect to Collateral while Collateral is in the possession of the Lender. Upon the occurrence and during the continuance of an Event of Default, the Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Lender’s remedies with respect to such appointment without prior notice or hearing as to such appointment. Upon the occurrence and during the continuance of an Event of Default, the Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationTerm Loan Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Lender of any other amount required by any provision of law, need the Lender account for the surplus, if any, to Borrower. To Upon the occurrence and during the continuance of an Event of Default, to the maximum extent permitted by applicable law, the Company waives Credit Parties waive all claims, damages, and demands against the Secured Parties Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Lender as finally determined by a court of competent jurisdiction. The Company Each Credit Party agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Lender of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Credit Parties shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including reasonable attorneys’ fees or other expenses incurred by the Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Credit Party hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The net cash proceeds resulting from the collection, liquidation, sale, lease or other disposition of the Collateral shall be applied first to the expenses (including all attorneys’ fees) of retaking, holding, storing, processing and preparing for sale, selling, collecting, liquidating and the like, and then to the satisfaction of all Obligations in accordance with the terms of the Term Loan Agreement. Each Credit Party shall be liable to the Lender and shall pay to the Lender, on demand, any deficiency which may remain after such sale, disposition, collection or liquidation of the Collateral. The Lender shall remit to such Credit Parties or other Person entitled thereto any surplus remaining after this Agreement has been terminated in accordance with Section 25(f) hereof.
(e) If an Event of Default under the Term Loan Agreement has occurred and is continuing: (i) the Lender shall have in addition to all other rights of the Lender, the rights and remedies of a secured party under the Loan Documents and the UCC; and (ii) the Lender may sell and deliver any Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as the Lender deems advisable, in its sole discretion, and may, if the Lender deems it reasonable, postpone or adjourn any sale of the Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, each Credit Party agrees that any notice by the Lender of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable notice to each Credit Party if such notice is mailed by registered or certified mail, return receipt requested, postage prepaid, or is delivered personally against receipt, at least ten (10) Business Days prior to such action to the Borrower’s address specified in the Term Loan Agreement. If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Lender receives payment, and if the buyer defaults in payment, the Lender may resell the Collateral without further notice to the Borrower or any Credit Party. The Lender is hereby granted a license or other right to use, without charge, each Credit Party’s labels, patents, copyrights, name, trade secrets, trade names, trademarks, and advertising matter, or any similar property, in completing production of, advertising or selling any Collateral, and each Credit Party’s rights under all licenses and all franchise agreements shall inure to the Lender’s benefit for such purpose. The proceeds of sale shall be applied first to all expenses of sale, including attorneys’ fees, and then to the Obligations. The Lender will return any excess to the Borrower and the Borrower and each other Credit Party shall remain liable for any deficiency.
Appears in 1 contract
Samples: Security Agreement (Applica Inc)
REMEDIES; RIGHTS UPON DEFAULT. Upon and after an Event of Default:
(a) In addition to any other rights given to the Secured Parties hereunderGE may, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds rights of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions holders of the preceding Section 2Permitted Liens, any Secured Party may exercise exercise, in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party or lien creditor under the CodeCode (whether or not the Code applies to the affected Collateral) or under any other applicable law of any jurisdiction. Without limiting the generality of the foregoing, the Company Obligor expressly agrees that in any such eventevent GE shall have the right, subject, however, to the rights of the holders of the Permitted Liens to (i) enter upon the premises of Obligor, or any other place where the Collateral is located and kept, through self-help and without judicial process, without first obtaining a final judgment or giving Obligor notice and opportunity for a hearing on the validity of GE's claim and without any obligation to pay rent to Obligor, and to remove the Collateral and/or (ii) to require Obligor to assemble, and Obligor hereby agrees to assemble, the Secured PartiesCollateral and make it available to GE at a place to be designated by GE, in its sole discretion. GE, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of the time and place of public or private sale) to or upon the Company Obligor or any other person may Person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may, subject to the rights of the holders of the Permitted Liens, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, thereof and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's sales board or at any of the Secured Parties’ GE's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Any such sales may be adjourned from time to time with or without notice. GE shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. GE shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemptionredemption of Obligor released and, which equity in lieu of redemption actual payment of the Company hereby releasespurchase price therefor, to set off the amount of such purchase price against the Obligations. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties GE hereunder, including reasonable attorneys' fees and legal expenses, shall be applied by GE to the payment in whole or in part of the Obligations, the Company remaining in such order as GE may elect. Obligor shall remain liable for any deficiency remaining unpaid after the such application, and only after (i) so paying over such net proceeds and after the payment by the Secured Parties GE of any other amount required by any provision of law, including the Code, and (ii) paying to DVI any surplus amounts held by GE which DVI has advised GE are payable to DVI, need GE account for the surplus, if any, to Obligor. To the extent permitted by applicable law, the Company Obligor waives all claims, damages, damages and demands against the Secured Parties GE arising out of the repossession, retention or sale of the Collateral. The Company Obligor agrees that a Secured Party GE need not give more than 10 days ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Obligor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party GE is entitled, Obligor also being liable for the reasonable fees and expenses of any attorneys employed by GE to collect such deficiency.
(cb) The Company Except as otherwise provided in the Agreement and this Security Agreement, Obligor hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Security Agreement (American Shared Hospital Services)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automaticallycontinuing, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Pledgor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith forth-with collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Pledgor hereby releases. The Company Each Pledgor further agrees, at any Secured Party’s the Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party the Agent shall reasonably select, whether at the Companysuch Pledgor's premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in Section 8(d) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company each Pledgor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need the Agent account for the surplus, if any, to such Pledgor. To the maximum extent permitted by applicable law, the Company each Pledgor waives all claims, damages, and demands against the Secured Parties Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of the Agent. The Company Each Pledgor agrees that a Secured Party the Agent need not give more than 10 days ten (10) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to such Pledgor at its address referred to in Section 11 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Pledgor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party the Purchaser is entitled, such Pledgor also being liable for the fees of any attorneys employed by the Purchaser to collect such deficiency. In addition to the foregoing, during the existence of any Event of Default, the Agent shall have the right (x) to obtain an absolute assignment of any General Intangible, (y) to sell, assign, transfer, or convey any General Intangible, or (z) to license any Person to use any General Intangible on terms deemed reasonable by the Agent.
(b) Each Pledgor also agrees to pay all costs of the Agent, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Each Pledgor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by the Agent in the following order of priorities: first, to the Agent in an amount sufficient to pay in full the expenses of the Agent in connection with such sale, disposition or other realization, including all expenses, liabilities and advances incurred or made by the Agent in connection therewith, including, without limitation, attorney's fees; second, to the Agent in an amount equal to the then unpaid principal of and accrued interest on the Secured Obligations; third, to the Agent in an amount equal to any other Secured Obligations which are then unpaid; and finally, upon payment in full of all of the Secured Obligations, to pay to each Pledgor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Credit Parties expressly agrees agree that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company a Credit Party or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of any Credit Party where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving a Credit Party or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Credit Parties hereby releasesrelease. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on the premises of any Credit Party or elsewhere and shall have the right to use any Credit Party's premises without charge for such time or times as Agent deems necessary or advisable.
(b) Upon the occurrence and during the continuance of an Event of Default, each Credit Party further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Borrower, whether at the Companya Credit Party's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Credit Party to maintain or preserve the rights of a Credit Party as against third parties with respect to Collateral while Collateral is in the possession of Agent. Upon the occurrence and during the continuance of an Event of Default, Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Upon the occurrence and during the continuance of an Event of Default, Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Borrower. To Upon the occurrence and during the continuance of an Event of Default, to the maximum extent permitted by applicable law, the Company waives Credit Parties waive all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Credit Party agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Credit Parties shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including reasonable attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Credit Party hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The net cash proceeds resulting from the collection, liquidation, sale, lease or other disposition of the Collateral shall be applied first to the expenses (including all attorneys' fees) of retaking, holding, storing, processing and preparing for sale, selling, collecting, liquidating and the like, and then to the satisfaction of all Obligations in accordance with the terms of the Credit Agreement. Each Credit Party shall be liable to Agent and the Lenders and shall pay to Agent and the Lenders, on demand, any deficiency which may remain after such sale, disposition, collection or liquidation of the Collateral. Agent shall remit to such Credit Parties or other Person entitled thereto any surplus remaining after this Agreement has been terminated in accordance with Section 25(f) hereof.
(e) If an Event of Default under the Credit Agreement has occurred and is continuing: (i) Agent shall have for the benefit of the Lenders, in addition to all other rights of Agent and the Lenders, the rights and remedies of a secured party under the Loan Documents and the UCC; and (ii) Agent may sell and deliver any Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as Agent deems advisable, in its sole discretion, and may, if Agent deems it reasonable, postpone or adjourn any sale of the Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, each Credit Party agrees that any notice by Agent of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable notice to each Credit Party if such notice is mailed by registered or certified mail, return receipt requested, postage prepaid, or is delivered personally against receipt, at least ten (10) Business Days prior to such action to the Borrower's address specified in or pursuant to Section 13.8 of the Credit Agreement. If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until Agent or the Lenders receive payment, and if the buyer defaults in payment, Agent may resell the Collateral without further notice to the Borrower or any Credit Party. Agent is hereby granted a license or other right to use, without charge, each Credit Party's labels, patents, copyrights, name, trade secrets, trade names, trademarks, and advertising matter, or any similar property, in completing production of, advertising or selling any Collateral, and each Credit Party's rights under all licenses and all franchise agreements shall inure to Agent's benefit for such purpose. The proceeds of sale shall be applied first to all expenses of sale, including attorneys' fees, and then to the Obligations. Agent will return any excess to the Borrower and the Borrower and each other Credit Party shall remain liable for any deficiency.
Appears in 1 contract
Samples: Security Agreement (Applica Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Secured Parties may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Debtors expressly agrees agree that in any such event, event the Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Debtors or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of the Debtors where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Debtors or any other Person notice and opportunity for a hearing on the Secured Parties’ claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Debtors hereby releasesrelease. Such sales may be adjourned and continued from time to time with or without notice. The Company Secured Parties shall have the right to conduct such sales on the Debtors’ premises or elsewhere and shall have the right to use the Debtors’ premises without charge for such time or times as the Secured Parties deems necessary or advisable. If any Event of Default shall have occurred and be continuing, the Debtors further agreesagree, at any Secured Partythe Collateral Agent’s request, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and the Debtors, whether at the Company's Debtors’ premises or elsewhere. Until the Secured Parties are able to affect a sale, lease, or other disposition of Collateral, the Secured Parties shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Parties. The Secured Parties shall have no obligation to the Debtors to maintain or preserve the rights of the Debtors as against third parties with respect to Collateral while Collateral is in the possession of the Secured Parties. The Secured Parties may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties’ remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties of any other amount required by any provision of law, need the Secured Parties account for the surplus, if any, to the Debtors. To the maximum extent permitted by applicable law, the Company waives Debtors hereby waive all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of such Secured Party as finally determined by a court of competent jurisdiction. The Company agrees Debtors agree that a ten (10) days prior notice by the Secured Party need not give more than 10 days notice Parties of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Debtors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees and other expenses incurred by the Secured Parties to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, the Debtors hereby waives waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Secured Parties to exercise remedies in a commercially reasonable manner, the Debtors acknowledge and agree that it is not commercially unreasonable for the Secured Parties (i) to fail to incur expenses reasonably deemed significant by the Secured Parties to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Debtors, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Secured Parties against risks of loss, collection or disposition of Collateral or to provide to the Secured Parties a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Secured Parties, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Parties in the collection or disposition of any of the Collateral. The Debtors acknowledge that the purpose of this Section 6(c) is to provide non-exhaustive indications of what actions or omissions by the Secured Parties would not be commercially unreasonable in the Secured Parties’ exercise of remedies against the Collateral and that other actions or omissions by the Secured Parties shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6(c). Without limitation upon the foregoing, nothing contained in this Section 6(c) shall be construed to grant any rights to the Debtors or to impose any duties on the Secured Parties that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 6(c).
(d) The Secured Parties shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, the Debtors, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. The Secured Parties shall not be required to marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Document shall be cumulative. To the extent it may lawfully do so, the Debtors absolutely and irrevocably waive and relinquish the benefit and advantage of, and covenant not to assert against the Secured Parties, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as sureties now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in it, subject to the terms of the ABL Intercreditor Agreement, under this Security Agreement or in Agreement, the Indenture, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Secured Obligations or pursuant to any other applicable law, if any Event of Default shall have occurred and be continuing, the Collateral Agent may, with the consent of the Required Holders, and shall, at law or in equitythe direction of the Required Holders, exercise all rights and remedies of a secured party under the CodeUniform Commercial Code of any applicable jurisdiction. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in that, if any such eventEvent of Default shall have occurred and be continuing, the Secured PartiesCollateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each The Collateral Agent or any of the other Secured Party Parties shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Collateral Agent and the other Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Collateral Agent shall have the right to conduct such sales on premises of any Grantor or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as the Collateral Agent deems necessary or advisable.
(b) Subject to the terms of the ABL Intercreditor Agreement, each Grantor further agrees, at any Secured Partythe Collateral Agent’s requestwritten request following the occurrence and during the continuance of an Event of Default, to assemble the Collateral, Collateral and make it available to one the Collateral Agent at a place or more of places designated by the Secured Parties at places Collateral Agent which a Secured Party shall are reasonably selectconvenient to the Collateral Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Collateral Agent is able to effect a sale, lease, or other disposition of the Collateral, while an Event of Default is continuing, the Collateral Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Collateral Agent in furtherance of exercising its rights and remedies hereunder. The Collateral Agent shall have no obligation to (i) marshal any of the Collateral or (ii) any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of the Collateral Agent. Upon the occurrence and during the continuation of an Event of Default, Collateral Agent may, with the consent of the Required Holders, and shall, at the direction of the Required Holders, if it or they so elect, seek the appointment of a receiver or keeper to take possession of the Collateral and to enforce any of the Collateral Agent’s remedies (for the benefit of the Collateral Agent and the other Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Subject to the terms of the ABL Intercreditor Agreement, if any, the Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses sale of every kind incurred therein or incidental Collateral to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationIndenture , and only after so paying over applying such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need the Collateral Agent account for the surplus, if any, to the applicable Grantor. To Neither the extent permitted by applicable lawCollateral Agent, the Company waives all claimsother Secured Parties, damagesnor any of their officers, and demands against the Secured Parties arising out directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct (as determined by a court of the repossessioncompetent jurisdiction in a final, retention or sale of the Collateralnon-appealable judgment). The Company Each Grantor agrees that a Secured Party need not give more than 10 days ten (10) days’ prior notice by the Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable liable, jointly and severally with the other Grantors, for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses incurred by the Collateral Agent or any of the other Secured Parties to which a Secured Party collect such deficiency (to the extent reimbursement is entitledprovided for herein or in the Indenture).
(c) The Company hereby waives presentmentEach Grantor further agrees, demandat the Collateral Agent’s written request following the occurrence and during the continuance of an Event of Default, protest to execute and deliver to Collateral Agent an assignment or any notice (assignments of the registered Intellectual Property or other Collateral owned by a Grantor and such other documents as are necessary or appropriate to carry out the intent and purposes hereof to the extent permitted by such assignment does not result in any loss of rights therein under applicable lawLaw.
(d) of any kind To the extent that applicable law imposes duties on the Collateral Agent to exercise remedies in connection with this Security Agreement a commercially reasonable manner, each Grantor acknowledges and agrees (pursuant to Section 9-603 or any other applicable provision of the UCC) that it is not commercially unreasonable for the Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition or to postpone any such disposition pending any such preparation or processing; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove any Lien on or any adverse claims against Collateral.; (iv) to exercise collection remedies against account debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur have occurred and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party Agent may exercise in addition to all other rights and remedies granted to it in under this Supplemental Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of each Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action (on behalf of Agent and Lenders), and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent or any Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use each Grantor's premises without charge for such time or times as Agent deems necessary or advisable. Each Grantor further agrees, if any Event of Default shall have occurred and be continuing, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more Agent, for the benefit of the Secured Parties Agent and Lenders, at places which a Secured Party Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all Obligations as provided in Section 1.11 of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after ------------ so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including Section 9-504(l)(c) of the ------------------- Code (but only after Agent has received what it considers reasonable proof of a subordinate party's security interest), need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party Agent, for itself and the ratable benefit of Lenders, is entitled, each Grantor also being liable for any attorneys' fees incurred by Agent or any Lender to collect such deficiency.
(b) Each Grantor, jointly and severally, agrees to pay any and all costs of Agent or any Lender, including attorneys' fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Supplemental Security Agreement or any Collateral.
Appears in 1 contract
Samples: Supplemental Security Agreement (Wilsons the Leather Experts Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Secured Promissory Note and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Secured Party may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the event Secured PartiesParty, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor, NL or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of Grantor or NL where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor, NL or any other Person notice and opportunity for a hearing on Secured Party’s claim or action, and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Secured Party shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Secured Party deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor and NL further agreesagree, at any Secured Party’s request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties at places which a Secured Party shall at a place or places designated by Secured Party which are reasonably selectconvenient to Secured Party, NL and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Until Secured Parties Party is able to effect a sale, lease, license or other disposition of Collateral, Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Secured Party. Secured Party shall have no obligation to Grantor or NL to maintain or preserve the rights of Grantor or NL as against third parties with respect to Collateral while Collateral is in the possession of Secured Party. Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Secured Party’s remedies with respect to such appointment without prior notice or hearing as to such appointment. Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of the Collateral or Obligations as Secured Party shall determine in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationits sole discretion, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Party of any other amount required by any provision of law, need Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company waives Grantor and NL waive all claims, damages, and demands against the Secured Parties Party arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Collateral except such as arise solely out of the gross negligence or willful misconduct of Secured Party need not give more than 10 as finally determined by a court of competent jurisdiction. Grantor and NL agree that ten (10) days prior notice by Secured Party of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any attorneys’ fees and other expenses incurred by Secured Party is entitledto collect such deficiency. Secured Party acknowledges that the rights and remedies set forth in this Section 8(a) are also reserved to an additional secured party pursuant to the Permitted Additional Lien.
(cb) The Company Except as otherwise specifically provided herein, Grantor and NL hereby waives waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, Grantor and NL acknowledge and agree that it is not commercially unreasonable for the Secured Party (i) to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition,
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared continuing, the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party Lender may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Pledgor expressly agrees that in any such event, event the Secured PartiesLender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, take possession of and realize upon the Collateral, or any part thereofthereof and take such other measures as Lender may deem necessary for the care, protection and preservation of the Collateral, and/or may forthwith hold, operate, sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Pledgor hereby releases. The Company further agrees, at any Secured Party’s request, to assemble the Collateral, make it available to one or more of the Secured Parties at places which a Secured Party shall reasonably select, whether at the Company's premises or elsewhere. The Secured Parties Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or as provided in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the ObligationsSection 8(d) hereof, the Company Pledgor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Lender of any other amount required by any provision of law. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out including section 9-504(1)(c) of the repossessionUCC, retention or sale of need the CollateralLender account for the surplus, if any, to the Pledgor. The Company Pledgor agrees that a Secured Party the Lender need not give more than ten days' notice (which notification shall be deemed given when deposited in the mails, postage prepaid, addressed to the Pledgor at its address referred to in Section 10 days notice hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Pledgor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party the Lender is entitled.
(b) The Pledgor also agrees to pay, within ten (10) days after demand therefor, all reasonable costs of the Lender, including reasonable attorneys' fees and expenses, incurred in connection with the enforcement of any of the Lender's rights and remedies hereunder or under the Note, as well as any costs or expenses incurred by the Lender incidental to taking, holding, preparing for sale, selling and the like or otherwise dealing with the Collateral, together with interest thereon at an annual rate of three percent (3%) in excess of the Interest Rate (as defined in the Note), and all such expenses and interest shall be secured by the Collateral as provided herein.
(c) The Company Pledgor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by the Lender in the following order of priorities:
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party each Agent may exercise in addition to all other rights and remedies granted to it in this Security Agreement or Agreement, the Commitment Order, the Final DIP Order, and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityCredit Document, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Credit Party expressly agrees that in any such event, the Secured PartiesCollateral Agent, without demand of performance or other demand, advertisement or notice of any kind (other than the notices specified in Section 7.1, and except the notice required by the Commitment Order or the Final DIP Order, or the notice specified below of time and place of public or private sale) to or upon the Company such Credit Party or any other person Person (all and each of which demands, advertisements and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of the Secured Parties’ Collateral Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Collateral Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, sales to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Credit Party hereby releases. The Company Each Credit Party further agrees, at any Secured Partythe Majority Lenders’ or the Collateral Agent’s request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Collateral Agent at places which a Secured Party that the Majority Lenders or the Collateral Agent shall reasonably select, whether at the Company's such Credit Party’s premises or elsewhere. The Secured Parties shall Collateral Agent shall, through the Administrative Agent, apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting sale (net of all reasonable costs and expenses of every kind incurred therein or incidental to by the care, safe keeping or otherwise of any or all of the Collateral or Administrative Agent in any way relating to the rights of the Secured Parties hereunderconnection therewith, including reasonable attorneys' attorney’s fees and legal expenses), to the payment in whole or in part of the Secured Obligations, if then outstanding, in the Company order provided for in Section 2.13, such Credit Party remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, including the UCC, any surplus shall be applied as provided below. Upon payment in full of the Secured Obligations and of the amounts referred to in the preceding sentence, the Collateral Agent shall account for the surplus, if any, to the relevant Credit Party in accordance with Section 2.13. To the maximum extent permitted by applicable law, the Company each Credit Party waives all claims, damages, and demands against the Secured Parties Agents and the Lenders arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of such Person. The Company Each Credit Party agrees that a Secured Party the Collateral Agent need not give more than 10 days thirty (30) calendar days’ notice to the Borrower pursuant to Section 7.1 (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to the Borrower at its address referred to in Section 12.2) of the time and place of any public sale of Collateral or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Collateral Agent and its agents shall have the right to enter upon any Real Property owned or leased by any Credit Party to exercise any of its rights or remedies under this Agreement. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and any such sale may, without further notice, be made at the time and place to which it was adjourned. Each Credit Party shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay its Obligations and all other amounts to which a Secured Party is the Agents and the Lenders are entitled, the Credit Parties also being liable for the fees and expenses of any attorneys employed by the Agents to collect such deficiency.
(cb) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.[Reserved]
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Sea Containers LTD /Ny/)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the Other Documents and under any other instrument or agreement securing, evidencing evidencing, or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements, and notices are hereby expressly waived to the maximum extent permitted by the UCC and other Applicable Law), may forthwith enter upon the premises of Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, appropriate assemble, process, appropriate, and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent or such Lenders, the whole or any part of said Collateral so sold, free of any right right, or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantor’s premises or elsewhere and shall have the right to use Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantor, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of the Collateral, Agent shall have the right to hold or use the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to Grantor to maintain or preserve the rights of Grantor as against third parties with respect to the Collateral while the Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of the Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and the Lenders) with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable lawApplicable Law, the Company Grantor waives all claims, damages, settlements, and demands against the Secured Parties Agent arising out of the repossession, retention retention, or sale of the CollateralCollateral (INCLUDING, WITHOUT LIMITATION, ALL CLAIMS, DAMAGES, SETTLEMENTS, AND DEMANDS ARISING IN WHOLE OR IN PART BASED ON THE NEGLIGENCE OR STRICT LIABILITY OF AGENT OR ANY LENDER) except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable lawApplicable Law) of any kind (including, without limitation, notice of intent to accelerate and notice of acceleration) in connection with this Security Agreement or any Collateral.
(c) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to the Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of the Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other persons obligated on the Collateral or to remove Liens on or any adverse claims against the Collateral, (iv) to exercise collection remedies against Account Debtors and other persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of the Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of the Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession, or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of the Collateral or to provide to Agent a guaranteed return from the collection or disposition of the Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by Applicable Law in the absence of this Section 7(c).
(d) Neither Agent nor any Lender shall be required to make any demand upon, or pursue or exhaust any of its rights or remedies against, Grantor, any other obligor, grantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of its rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Lender shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its rights hereunder or under any Other Documents shall be cumulative. To the extent it may lawfully do so, and to the extent Agent uses commercially reasonable standards, Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption, or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing (including, without limitation, all rights under Chapter 34 of the Texas Business and Commerce Code) which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order, or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Englobal Corp)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable. The Company Agent is authorized, at any such sale, if it deems it advisable so to do, to restrict the prospective bidders or purchasers of any of the Pledged Collateral 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 sale of any such Pledged Collateral, and to take such other actions as it may deem appropriate to exempt the offer and sale of the Collateral from any registration requirements of state or federal securities laws (including, if it deems it appropriate, actions to comply with Regulation D of the Securities and Exchange Commission under the Securities Act of 1933, as from time to time amended (the "Securities Act")).
(b) Each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 24(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 24(d). Without limitation upon the foregoing, nothing contained in this Section 24(d) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 24(d).
Appears in 1 contract
Samples: Pledge and Security Agreement (Taylor Ann Stores Corp)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur have occurred and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party Agent may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of each Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action (on behalf of Agent and Lenders), and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent or any Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use each Grantor's premises without charge for such time or times as Agent deems necessary or advisable. Each Grantor further agrees, if any Event of Default shall have occurred and be continuing, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more Agent, for the benefit of the Secured Parties Agent and Lenders, at places which a Secured Party Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all Obligations as provided in Section 1.11 of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including Section 9-504(1)(c) of the Code (but only after Agent has received what it considers reasonable proof of a subordinate party's security interest), need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party Agent, for itself and the ratable benefit of Lenders, is entitled, each Grantor also being liable for any attorneys' fees incurred by Agent or any Lender to collect such deficiency.
(b) Each Grantor, jointly and severally, agrees to pay any and all costs of Agent or any Lender, including attorneys' fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Appears in 1 contract
Samples: Security Agreement (Wilsons the Leather Experts Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith (personally or through its agents or attorneys) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, appropriate assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party To facilitate the foregoing, Agent shall have the right to take possession of each Grantor’s original books and records, to obtain access to each Grantor’s data processing equipment, computer hardware and Software and to use all of the foregoing and the information contained therein in any manner which Agent deems appropriate. Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use such Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain the Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of the Lender Parties), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such sale, lease, license, other disposition of, or any collection, recovery, receipt, appropriationor realization on, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental the Collateral to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(c). Without limitation upon the foregoing, nothing contained in this Section 8(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8(c).
(d) Neither Agent nor any Lender shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Lender shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral or Equipment is located through selfhelp, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the CollateralCollateral and Equipment, or any part thereof, and/or and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral or Equipment (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral or Equipment so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Party’s requestAgent's request in connection with Agent's exercise of its remedies hereunder, to assemble the Collateral, Collateral and Equipment and make it available to one or more of the Secured Parties Agent at places which a Secured Party Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral or Equipment in connection with Agent's exercise of its remedies hereunder, Agent shall have the right to hold or use Collateral and Equipment, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral and Equipment or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral and Equipment while Collateral and Equipment is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and Equipment and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, shall Agent account for the surplus, if any, to the Grantors. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral or Equipment except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain jointly and severally liable for any deficiency if the proceeds of any sale or disposition of the Collateral or Equipment are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any CollateralCollateral or Equipment.
Appears in 1 contract
Samples: Security Agreement (Unova Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(scontinuing:
(i) to be due and payable (or such amounts shall have automatically, become due and payable), all All payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured PartiesFBR, shall be segregated from other funds of the Company and shall, if requested by any Secured Party shall forthwith upon receipt by the Company Company, be turned over to the Secured PartiesFBR, in the same form as received by the Company (duly endorsed by the Company to the Secured PartiesFBR, if required); and
(ii) Any and all such payments so received by FBR (whether from the Company or otherwise) may, in the sole discretion of FBR, be held by FBR as collateral security for, and/or then or at any time thereafter applied in whole or in part by FBR, against all or any part of the Obligations in such order as FBR shall elect. Any balance of such payments held by FBR and remaining after payment in full of the outstanding principle and interest on the Loan shall be paid over to the Company or to whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2continuing, any Secured Party FBR may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityLoan, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured Partiesevent FBR, without demand of performance or other demand, (except the advertisement or notice specified below of time and place of public or private sale) any kind to or upon the Company or any other person person, may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ FBR's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party FBR shall have the right upon any such public sale or sales, and, and to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemptionredemption in the Company, which right of equity of redemption the Company is hereby releasesexpressly waived and released. The Company further agrees, at any Secured Party’s FBR's request, to assemble the Collateral, make it available to one or more of the Secured Parties FBR at places which a Secured Party FBR shall select which shall be reasonably selectconvenient to FBR and the Company, whether at the Company's premises or elsewhere. The Secured Parties FBR shall apply pay over the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties FBR hereunder, including reasonable attorneys' fees and legal expenses, to FBR for application by them to the payment in whole or in part of the Obligationsprinciple and interest on the Loan, in such order as FBR may elect, the Company remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties FBR of any other amount required by any provision of law, including Section 9-504(l)(c) of the UCC, need FBR account for the surplus, if any, to the Company. To the extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties FBR arising out of the repossession, retention or sale of the Collateral. The Company agrees that a Secured Party FBR need not give more than 10 days l0 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party FBR is entitled, the Company also being liable for the fees of any attorneys employed by FBR to collect such deficiency.
(c) The Company also agrees to pay all costs of FBR, including attorneys' fees, incurred with respect to the collection of any of the Obligations and the enforcement of any of their respective rights hereunder.
(d) The Company hereby waives presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral, except as otherwise provided herein or in the Loan Agreement.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Default or Event of Default shall occur and be continuing and any Secured Party shall have declared continuing, the amounts owing under Agent shall, at the Note(srequest of Holders holding sixty percent (60%) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any more of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2then outstanding Secured Obligations, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing evidencing, or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person (all and each of which demands, advertisements, and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said such Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said such Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party that Agent shall reasonably select, whether at the CompanyGrantor's premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in SECTION 8(D) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company Grantor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including section 9615(a)(3) of the UCC, need Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, the Company waives all claims, damages, and demands against the Secured Parties arising out of the repossession, retention or sale of the Collateral. The Company Grantor
(b) Grantor also agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitledcosts of Agent and Holders, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Grantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition, or other realization upon all or any part of the Collateral shall be distributed by Agent in the following order: first to payment in full of the costs and expenses of the Agent in connection with the performance of its obligations under this Agreement, second to payment of all the Secured Obligations and then to pay to the Grantor, or its representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies authorized or granted to it in under this Security Agreement or in Agreement, the Purchase Agreement, the Notes and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Default shall have occurred and be continuing, Investors may exercise all rights and remedies of a secured party under the CodeCode (whether or not in effect in the jurisdiction where such rights are exercised). Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Investors, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Investors’ claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and, following the delivery of notice to Grantor may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Investors shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Investors, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Investors shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Investors deems necessary or advisable. If any Default shall have occurred and be continued, each Grantor further agrees, at any Secured Party’s Investors’ request, to assemble the Collateral, Collateral and make it available to one Investors at a place or more of the Secured Parties at places designated by Investors which a Secured Party shall are reasonably selectconvenient to Investors and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Until Investors are able to effect a sale, lease, or other disposition of Collateral, Investors shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Investors. Investors shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Investors. Investors may, if they so elect, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Investors’ remedies (for the benefit of Investors and Investors), with respect to such appointment without prior notice or hearing as to such appointment. Investors shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationPurchase Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Investors of any other amount required by any provision of law, need Investors account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Investors or any Investor arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Investors or such Investor as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Investors of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is entitled.
(c) The Company hereby waives presentmentObligations, demand, protest including any reasonable attorneys’ fees and other expenses incurred by Investors or any notice (Investor to the extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateralcollect such deficiency.
Appears in 1 contract
Samples: Securities Purchase Agreement (Stratus Media Group, Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared continuing, the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party Administrative Agent may exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company expressly agrees that in any such event, the Secured PartiesAdministrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Pledgor or any other person Person (all and each of which demands, presentment, protest, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Pledged Collateral or any part thereof (or contract to do soany of the foregoing), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange exchange, broker's board or at any office of the Secured Parties’ offices Administrative Agent or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Administrative Agent and any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Pledged Collateral so sold, free of any right or equity of redemptionredemption in the Pledgor, which right or equity of redemption the Company is hereby releaseswaived or released. The Company Pledgor further agrees, at any Secured Party’s the Administrative Agent's request, to assemble the Collateral, Pledged Collateral and make it available to one or more of the Secured Parties Administrative Agent at places which a Secured Party the Administrative Agent shall reasonably select, whether at the CompanyPledgor's premises or elsewhere. The Secured Parties Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping care or otherwise safekeeping of any or all of the Pledged Collateral or in any way relating to the Pledged Collateral or the rights of the Secured Parties Administrative Agent hereunder, including reasonable including, without limitation, attorneys' fees and legal expensesdisbursements, to the payment in whole or in part of the Obligations, in such order as the Company remaining liable for any deficiency remaining unpaid after the applicationAdministrative Agent may elect, and only after so paying over such net proceeds application and payment in full of the Obligations and after the payment by the Secured Parties Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-504(1)(c) of the Code, need the Administrative Agent account for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Company Pledgor waives all claims, damages, and demands against the Secured Parties Administrative Agent arising out of the repossession, retention or sale of the Pledged Collateral. The Company agrees that a Secured Party need not give more than 10 days If any notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any proposed sale or disposition of Pledged Collateral shall be required by law, such notice shall be deemed reasonably and properly given if given (effective upon dispatch) in any manner provided in the Collateral are insufficient to pay all amounts to which a Secured Party is entitledCredit Agreement at least 20 days before such sale or disposition.
(cb) The Company hereby waives presentmentIf an Event of Default shall occur and be continuing, demandthe Administrative Agent may (but need not), protest or any upon notice (to the extent Pledgor, exercise all voting and other rights of the Pledgor as a limited or general partner of the Partnerships and exercise all other rights as a limited or general partner provided under the Partnership Agreements in respect of the Partnership Interest and the Administrative Agent shall receive all permitted by applicable law) distributions, if any, made for the account of any kind in connection with this Security Agreement the Pledgor as a limited or any Collateralgeneral partner under the Partnership Agreements.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition Upon the occurrence of any Event of Default, Administrative Agent or Administrative Agent’s designee may, at Administrative Agent’s option, elect to any other rights given become a substituted [member][owner][partner] in the Company with respect to the Secured Parties hereunder, if an Event of Default Pledged Collateral and Grantor shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) execute or cause to be due and payable executed all documents necessary to evidence Administrative Agent (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any on behalf of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(bLenders) so becoming a substituted [member][owner][partner]. If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2occur, any Secured Party Administrative Agent or Administrative Agent’s designee may exercise in addition to all other rights and remedies granted to it them in this Security Agreement or Assignment and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, the Secured Partiesevent Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said Pledged Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of the Secured Parties’ Administrative Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. Each Secured Party Grantor expressly acknowledges that private sales may be less favorable to a seller than public sales but that private sales shall nevertheless be deemed commercially reasonable and otherwise permitted hereunder. In view of the fact that federal and state securities laws and/or other applicable laws may impose certain restrictions on the method by which a sale of the Pledged Collateral may be effected, Grantor agrees that upon the occurrence of an Event of Default, Administrative Agent may, from time to time, attempt to sell all or any part of the Pledged Collateral by means of a private placement, restricting the prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution and who otherwise satisfy all of the requirements of applicable federal and state securities laws. In so doing, Administrative Agent may solicit offers to buy the Pledged Collateral, or any part thereof, for cash, from a limited number of investors deemed by Administrative Agent in its judgment, to be financially responsible parties who might be interested in purchasing the Pledged Collateral, and if Administrative Agent solicits such offers, then the acceptance by Administrative Agent of the highest offer obtained therefrom shall be deemed to be a commercially reasonable method of disposing of the Pledged Collateral. Administrative Agent or Administrative Agent’s designee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Pledged Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. The Company Grantor further agrees, at any Secured Party’s requestthe request of Administrative Agent, to assemble the Collateral, Pledged Collateral and make it available to one or more of the Secured Parties Administrative Agent at places which a Secured Party Administrative Agent shall reasonably select, whether at the Company's Grantor’s premises or elsewhere. The Secured Parties Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses sale as provided in Section 10(c) of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only this Assignment. Only after so paying over such net proceeds and after the payment by the Secured Parties Administrative Agent of any other amount required by any provision of law, including Section 9‑615(a)(3) of the Code (or any other then‑applicable provision of the Code), need Administrative Agent account for the surplus, if any, to Grantor. To the extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Administrative Agent and Lenders arising out of the disposition, repossession, retention or sale of the CollateralPledged Collateral except in each case such as arise out of the gross negligence or willful misconduct of Administrative Agent or Lenders. The Company Grantor agrees that a Secured Party Administrative Agent need not give more than 10 days ten (10) days’ notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to Grantor at Grantor’s address referred to in Section 12 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient Grantor also agrees to pay all amounts costs of Administrative Agent and Lenders, including reasonable attorneys’ fees and expenses, incurred with respect to which a the enforcement, retaking, holding, preparing for disposition, processing and disposing of the Pledged Collateral, the collection of any of the Secured Party is entitledObligations or the enforcement of any of Administrative Agent’s and Lenders’ rights hereunder.
(cb) The Company Grantor hereby waives presentment, demand, or protest (to the extent permitted by applicable law) of any kind in connection with this Assignment or any Pledged Collateral. Except for notices provided for herein, Grantor hereby waives notice (to the extent permitted by applicable law) of any kind in connection with this Security Agreement Assignment.
(c) The proceeds of any sale, disposition or other realization upon all or any Collateralpart of the Pledged Collateral shall be distributed by Lender in accordance with Section 8.03 of the Credit Agreement. Grantor agrees to indemnify and hold harmless Administrative Agent and Lenders, their respective affiliates, shareholders, partners, members, directors, officers, employees, agents, successors and assigns, and each of them, from and against any and all liabilities, obligations, claims, causes of action, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by any of them arising out of or by reason of (i) Administrative Agent’s exercise (on behalf of Lenders) of remedies under this Assignment and the Code in a manner consistent with this Assignment and applicable law, or (ii) claims against Administrative Agent or Lenders by third parties arising out of or by reason of the Collateral or Lender’s interest therein (but only until foreclosure hereunder except in each case resulting from the gross negligence of willful misconduct of Administrative Agent or Lenders). Administrative Agent will promptly give Grantor written notice of the assertion of any claim which it believes is subject to the indemnity set forth in this Section 10 and will upon the request of Grantor promptly furnish Grantor with all material in its possession relating to such claim or the defense thereof to the extent Administrative Agent may do so without breach of duty to others and will cooperate with Grantor in the defense of the claim. Any amounts properly due under this Section 10 shall be payable to Administrative Agent immediately upon demand.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, either Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent either Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on such Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Either Agent or any Secured Party shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Revolver Secured Parties or Term Secured Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Either Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as such Agent deems necessary or advisable. If any Event of Default shall have occurred and be continued, each Grantor further agrees, at any Secured Party’s either Agent's request, to assemble the Collateral, Collateral and make it available to one such Agent at a place or more of the Secured Parties at places designated by such Agent which a Secured Party shall are reasonably selectconvenient to such Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Until such Agent is able to effect a sale, lease, or other disposition of Collateral, such Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by such Agent. Such Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of such Agent. Such Agent may, if it so elects, during the continuance of an Event of Default, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of such Agent's remedies (for the benefit of the respective Secured Parties Parties), with respect to such appointment without prior notice or hearing as to such appointment. Such Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties such Agent of any other amount required by any provision of law, need such Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the either Agent or any Secured Parties Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of such Agent or such Secured Party as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by either Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Obligations, including any attorneys' fees and other expenses incurred by either Agent or any Secured Party is entitledto collect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the either Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the either Agent (i) to fail to incur expenses reasonably deemed significant by such Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure such Agent against risks of loss, collection or disposition of Collateral or to provide to such Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by such Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist such Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by such Agent would not be commercially unreasonable in such Agent's exercise of remedies against the Collateral and that other actions or omissions by such Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on either Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither Agent nor any Secured Party shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor any Secured Party shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agents or any Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
(e) Notwithstanding anything to the contrary contained herein, each of the Administrative Agent and the Term Agent covenants that it shall not exercise any rights or remedies (other than make any filings in order to protect, preserve and maintain such Agent's security interest hereunder) under this Agreement except as in accordance with the Credit Agreement including without limitation Annex C thereto.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, , whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent or any Lender or any Selected Revolving Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent, the Lenders and the Selected Revolving Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on such Grantor's premises or elsewhere and shall have the right to use such Grantor's premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Party’s the Agent's request, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Secured Parties Agent shall have no obligation to such Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Agent's remedies (for the benefit of the Agent and the Lenders), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company such Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Such Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Such Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys' fees or other expenses incurred by the Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as from time to time amended (the "SECURITIES ACT"), and applicable state securities laws, the Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral conducted without prior registration or qualification of such Pledged Collateral under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private placement may be at prices and on terms less favorable than those obtainable through a sale without such restrictions (including, without limitation, an offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances and the registration rights granted to the Agent by such Grantor pursuant to SECTION 28(D) hereof, such Grantor agrees that any such private placement shall not be deemed, in and of itself, to be commercially unreasonable and that the Agent shall have no obligation to delay the sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register it for a form of sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Agent determines to exercise its right to sell any or all of the Pledged Collateral, upon written request, each Grantor shall and shall cause each issuer of any Pledged Interests to be sold hereunder from time to time to furnish to the Agent all such information as the Agent may request in order to determine the amount of Pledged Collateral that may be sold by the Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
(d) If the Agent shall determine to exercise its right to sell all or any of the Pledged Collateral, each Grantor agrees that, upon request of the Agent (which request may be made by the Agent in its sole discretion), such Grantor will, at its own expense:
(i) execute and deliver, and cause each issuer of the Pledged Collateral contemplated to be sold and the directors and officers thereof to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Agent, advisable to register such Pledged Collateral under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectus which, in the opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under all applicable state securities or "Blue Sky" laws and to obtain all necessary governmental approvals for the sale of the Pledged Collateral, as requested by the Agent;
(iii) cause each such issuer to make available to its security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act;
(iv) do or cause to be done all such other acts and things as may be necessary to make such sale of the Pledged Collateral or any part thereof valid and binding and in compliance with applicable law; and
(v) bear all costs and expenses, including reasonable attorneys' fees, of carrying out its obligations under this SECTION 28(D).
(e) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(f) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as the such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Such Grantor acknowledges that the purpose of this SECTION 28(F) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this SECTION 28(F). Without limitation upon the foregoing, nothing contained in this SECTION 25(F) shall be construed to grant any rights to such Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this SECTION 25(F).
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on the Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent or any Lender or any Selected Revolving Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent, the Lenders and the Selected Revolving Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on such Grantor’s premises or elsewhere and shall have the right to use such Grantor’s premises without charge for such time or times as the Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Partythe Agent’s request, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Secured Parties Agent shall have no obligation to such Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Agent’s remedies (for the benefit of the Agent and the Lenders), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company such Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Such Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Such Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys’ fees or other expenses incurred by the Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as from time to time amended (the “Securities Act”), and applicable state securities laws, the Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral conducted without prior registration or qualification of such Pledged Collateral under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private placement may be at prices and on terms less favorable than those obtainable through a sale without such restrictions (including, without limitation, an offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances and the registration rights granted to the Agent by such Grantor pursuant to Section 28(d) hereof, such Grantor agrees that any such private placement shall not be deemed, in and of itself, to be commercially unreasonable and that the Agent shall have no obligation to delay the sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register it for a form of sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Agent determines to exercise its right to sell any or all of the Pledged Collateral, upon written request, each Grantor shall and shall cause each issuer of any Pledged Interests to be sold hereunder from time to time to furnish to the Agent all such information as the Agent may request in order to determine the amount of Pledged Collateral that may be sold by the Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
(d) If the Agent shall determine to exercise its right to sell all or any of the Pledged Collateral, each Grantor agrees that, upon request of the Agent (which request may be made by the Agent in its sole discretion), such Grantor will, at its own expense:
(i) execute and deliver, and cause each issuer of the Pledged Collateral contemplated to be sold and the directors and officers thereof to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Agent, advisable to register such Pledged Collateral under the provisions of the Securities Act and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectus which, in the opinion of the Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under all applicable state securities or “Blue Sky” laws and to obtain all necessary governmental approvals for the sale of the Pledged Collateral, as requested by the Agent;
(iii) cause each such issuer to make available to its security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act;
(iv) do or cause to be done all such other acts and things as may be necessary to make such sale of the Pledged Collateral or any part thereof valid and binding and in compliance with applicable law; and
(v) bear all costs and expenses, including reasonable attorneys’ fees, of carrying out its obligations under this Section 28(d).
(e) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(f) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as the such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Such Grantor acknowledges that the purpose of this Section 28(f) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 28(f). Without limitation upon the foregoing, nothing contained in this Section 25(f) shall be construed to grant any rights to such Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 25(f).
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if If an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(soccurs:
(i) to be due and payable (or such amounts shall have automatically, become due and payable), all All payments received by the Company Borrower under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company Borrower in trust for the Secured PartiesParty, shall be segregated from other funds of the Company Borrower and shall, if requested by any Secured Party shall forthwith upon receipt by the Company Borrower be turned over to the Secured PartiesParty, in the same form as received by the Company Borrower (duly endorsed by the Company Borrower to the Secured PartiesParty, if required).
(bii) If Any and all such payments so received by the Secured Party (whether from the Borrower or otherwise) shall be held by the Secured Party as collateral security for, and then or at any Event time thereafter, may be applied in whole or in part for the benefit of Default the Secured Party against, all or any part of the Obligations in such order as the Secured Party, in its discretion, may determine.
(iii) The Secured Party shall occur have the right to seize and be continuing take possession of any Collateral (or any paper, documents, correspondence, computer tapes, programs, printouts and subject all other computer materials, records and electronic data processing software relating to the subordination provisions Collateral) and may enter the premises where they, or any of them, are located and occupy all or any portion of the preceding Section 2Borrower's premises without charge therefor for the purposes of effecting such seizure. The Secured Party shall not be liable to the Borrower for any damage suffered by the Borrower by reason of such entry or seizure unless it results from the Secured Party's willful misconduct, any gross negligence or bad faith.
(iv) The Secured Party may exercise hire and maintain at the Borrower's principal office premises a custodian or independent
(b) The Secured Party may exercise, after the occurrence of an Event of Default, for the benefit of the Secured Party, in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing or relating to the Obligations or at law or in equityObligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Borrower expressly agrees that in any such event, event the Secured PartiesParty may, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon on the Company Borrower or any other person may Person, all and each of which demands, advertisements and/or notices are (to the extent permitted by applicable law) hereby expressly waived, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, forthwith take possession and operate or use the Collateral or any part thereof for the purpose of preserving it or its value, and/or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver said the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Party's offices or elsewhere elsewhere, at such prices as it may deem bestappropriate, for cash or on credit or for future delivery without assumption of any credit riskrisk and to collect all Accounts, including, without limitation, direct all Account Debtors to make payments of all of their Accounts owing to the Borrower directly to the Bank and to exercise every right, option, power or authority inuring to the Borrower under the Purchase Contract as fully as the Borrower could itself, including, directing the counterparty thereto to make all payments under the indemnification provisions of Section 10.3 thereof directly to the Lender. Each Secured Party shall have the right upon on any such public sale or sales, sales and, to the extent permitted by law, upon on any such private sale or sales, sales to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemptionredemption in the Borrower, which right or equity of redemption is (to the Company extent permitted by applicable law) hereby releasesexpressly waived or released. The Company Borrower further agrees, at any the Secured Party’s 's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Party at places which a that the Secured Party shall reasonably select, whether at the CompanyBorrower's premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the application, and only after so paying over such net proceeds and after the payment by the Secured Parties of any other amount required by any provision of law. To the extent permitted by applicable law, the Company Borrower waives all claims, damages, damages and demands against the Secured Parties Party arising out of the repossession, retention retention, sale, or sale of the Collateral. The Company agrees that a Secured Party need not give more than 10 days notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay all amounts to which a unless resulting from such Secured Party is entitled.Party's willful misconduct, gross negligence or bad faith. The Borrower agrees
(c) The Company hereby waives presentmentTo the extent that it may lawfully do so, demandthe Borrower agrees that it will not at any time insist upon, protest plead or in any manner whatsoever claim or take the benefit or advantage of any appraisement, valuation, stay, extension or redemption laws, or any notice (law permitting it to direct the extent permitted by applicable law) order in which the Collateral or any part thereof shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of any kind in connection with this Security Agreement or the Obligations and hereby expressly waives all benefit or advantage of any such laws and covenants that it will not hinder, delay or impede the execution of any power granted or delegated to the Secured Party in this Security Agreement, but will suffer and permit the execution of every such power as though no such laws were in force.
(d) To the extent not expressly provided for herein the Secured Party shall also have all of its rights and remedies under the Credit Agreement.
(e) Borrower shall be responsible for any and all reasonable expenses, including reasonable attorneys' fees and expenses, incurred or paid by Secured Party in protecting or enforcing any rights of Secured Party hereunder, including its right to take possession, store, operate, use and dispose of the Collateral or to collect the Proceeds thereof. Secured Party shall also have the right to pay all other sums deemed necessary or desirable by it for the preservation and protection of the Collateral, or for the realization thereupon, including taxes, insurance, salaries (directly related to the preservation or use of the Collateral or continued operation of the Borrower's businesses to that end), fees and costs. All such sums so paid by Secured Party shall be "Obligations" within the meaning of this Security Agreement, due upon demand.
Appears in 1 contract
Samples: Pledge and Security Agreement (Triton Systems Inc / Fa)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equityObligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor's premises or elsewhere and shall have the right to use such Grantor's premises without charge for such time or times as Agent deems necessary or advisable.
(b) Each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and such Grantor, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Obligations, including any attorneys' fees or other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (a) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 22(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 22(d). Without limitation upon the foregoing, nothing contained in this Section 22(d) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 22(d).
Appears in 1 contract
Samples: Security Agreement (Unifi Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to If any other rights given to the Secured Parties hereunder, if an Default or Event of Default shall occur and be continuing and any Secured Party shall have declared continuing, Agent shall, at the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any request of the Collateral shall be subject to Required Holders or may with the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds consent of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may Required Holders exercise in addition to all other rights and remedies granted to it in this Security Agreement or and in any other instrument or agreement securing, evidencing evidencing, or relating to the Obligations or at law or in equitySecured Obligations, all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person (all and each of which demands, advertisements, and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith collect, receive, appropriate appropriate, and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said such Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of the Secured Parties’ Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said such Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company such Grantor hereby releases. The Company Each Grantor further agrees, at any Secured Party’s Agent's request, to assemble the Collateral, Collateral and make it available to one or more of the Secured Parties Agent at places which a Secured Party that Agent shall reasonably select, whether at the Companysuch Grantor's premises or elsewhere. The Secured Parties Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the careas provided in SECTION 8(D) hereof, safe keeping or otherwise of any or all of the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company such Grantor remaining liable for any deficiency remaining unpaid after the such application, and only after so paying over such net proceeds and after the payment by the Secured Parties Agent of any other amount required by any provision of law, including section 9504(1)(c) of the UCC, need Agent account for the surplus, if any, to such Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent and Holders arising out of the repossession, retention retention, or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Agent or any Holder. The Company Each Grantor agrees that a Secured Party the Agent need not give more than 10 days ten (10) days' notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to such Grantor at its address referred to in SECTION 12 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which a Secured Party is Agent and Holders are entitled, such Grantor also being liable for the fees of any attorneys employed by Agent and Holders to collect such deficiency.
(b) Each Grantor also agrees to pay all costs of Agent and Holders, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company Each Grantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition, or other realization upon all or any part of the Collateral shall be distributed by Agent in the following order: first to payment in full of all the Secured Obligations and then to pay to the Grantors, or their representatives or as a court of competent jurisdiction may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
Samples: Security and Pledge Agreement (Brilliant Digital Entertainment Inc)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Credit Agreement, the other Loan Documents, and under any other instrument or agreement securing, evidencing evidencing, or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, the Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company Grantor expressly agrees that in any such event, event the Secured PartiesAgent, without demand of performance or other demand, advertisement, or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company Grantor or any other person Person (all and each of which demands, advertisements, and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of the Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving the Grantor or any other Person notice and opportunity for a hearing on the Agent's claim or action and may collect, receive, appropriate assemble, process, appropriate, and realize upon the Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it the Agent may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party The Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. The Company Agent shall have the right to conduct such sales on the Grantor's premises or elsewhere and shall have the right to use the Grantor's premises without charge for such time or times as the Agent deems necessary or advisable.
(b) The Grantor further agrees, at any Secured Party’s the Agent's request, to assemble the Collateral, Collateral and make it available to one the Agent at a place or more of places designated by the Secured Parties at places Agent which a Secured Party shall are reasonably selectconvenient to the Agent and the Grantor, whether at the CompanyGrantor's premises or elsewhere. Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Secured Parties Agent shall have no obligation to the Grantor to maintain or preserve the rights of the Grantor as against third parties with respect to Collateral while Collateral is in the possession of the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Agent's remedies (for the benefit of the Agent and the Lenders), with respect to such appointment without prior notice or hearing as to such appointment. The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization realization, or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationCredit Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need the Agent account for the surplus, if any, to the Grantor. To the maximum extent permitted by applicable law, the Company Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention retention, or sale of the CollateralCollateral except such as arise solely out of the gross negligence or willful misconduct of the Agent or such Lender as finally determined by a court of competent jurisdiction. The Company Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by the Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts Secured Obligations, including any attorneys' fees or other expenses incurred by the Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, the Grantor hereby waives presentment, demand, protest protest, or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, the Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession, or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection, or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants, and other professionals to assist the Agent in the collection or disposition of any of the Collateral. The Grantor acknowledges that the purpose of this Section 2.23(d) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 2.23(d). Without limitation upon the foregoing, nothing contained in this Section 2.23(d) shall be construed to grant any rights to the Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by Requirements of Law in the absence of this Section 2.23(d).
Appears in 1 contract
Samples: Security Agreement (Daisytek International Corporation /De/)
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Loan Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations (but subject to the terms of such instruments or at law or in equityagreements), if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company any Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of any Grantor where any US Security Agreement Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the US Security Agreement Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said US Security Agreement Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Agent or any Lender shall have the right upon any such public sale or sales, sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said US Security Agreement Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on Grantors’ premises or elsewhere and shall have the right to use Grantors’ premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at any Secured PartyAgent’s request, to assemble the Collateral, US Security Agreement Collateral and make it available to one Agent at a place or more of the Secured Parties at places designated by Agent which a Secured Party shall are reasonably selectconvenient to Agent and Grantors, whether at the Company's Grantors’ premises or elsewhere. The Secured Parties Until Agent is able to effect a sale, lease, or other disposition of US Security Agreement Collateral, Agent shall have the right to hold or use US Security Agreement Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving US Security Agreement Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to Grantors to maintain or preserve the rights of Grantors as against third parties with respect to any US Security Agreement Collateral while such US Security Agreement Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of US Security Agreement Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationLoan Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to Grantors. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Agent or any Lender arising out of the repossession, retention or sale of the CollateralUS Security Agreement Collateral except to the extent that such arise out of the gross negligence or willful misconduct of Agent or such Lender as determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the US Security Agreement Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to which a Secured Party is entitledcollect such deficiency.
(cb) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any US Security Agreement Collateral.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare US Security Agreement Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to US Security Agreement Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of US Security Agreement Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on US Security Agreement Collateral or to remove Liens on or any adverse claims against US Security Agreement Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on US Security Agreement Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of US Security Agreement Collateral through publications or media of general circulation, whether or not the US Security Agreement Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as Grantors, for expressions of interest in acquiring all or any portion of such US Security Agreement Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of US Security Agreement Collateral, whether or not the US Security Agreement Collateral is of a specialized nature, (viii) to dispose of US Security Agreement Collateral by utilizing internet sites that provide for the auction of assets of the types included in the US Security Agreement Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of US Security Agreement Collateral or to provide to the Agent a guaranteed return from the collection or disposition of US Security Agreement Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the US Security Agreement Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the US Security Agreement Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to Grantors or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any US Security Agreement Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor the Lenders shall be required to marshal the US Security Agreement Collateral or any guarantee of the Obligations or to resort to the US Security Agreement Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any US Security Agreement Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
REMEDIES; RIGHTS UPON DEFAULT. (a) In addition to any other rights given to the Secured Parties hereunder, if an Event of Default shall occur and be continuing and any Secured Party shall have declared the amounts owing under the Note(s) to be due and payable (or such amounts shall have automatically, become due and payable), all payments received by the Company under or in connection with any of the Collateral shall be subject to the subordination provisions contained in the preceding Section 2, held by the Company in trust for the Secured Parties, shall be segregated from other funds of the Company and shall, if requested by any Secured Party forthwith upon receipt by the Company be turned over to the Secured Parties, in the same form as received by the Company (duly endorsed by the Company to the Secured Parties, if required).
(b) If any Event of Default shall occur and be continuing and subject to the subordination provisions of the preceding Section 2, any Secured Party may exercise in addition to all other rights and remedies granted to it in under this Security Agreement or in Agreement, the Second Lien Indenture, the other Note Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations or at law or in equitySecured Obligations, if any Event of Default shall have occurred and be continuing, Collateral Agent may, subject to the terms of the Intercreditor Agreement, exercise all rights and remedies of a secured party under the CodeUCC. Without limiting the generality of the foregoing, the Company each Grantor expressly agrees that in any such event, the Secured Partiesevent Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of such Grantor where any Second Lien Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving such Grantor or any other Person notice and opportunity for a hearing on Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Second Lien Collateral, or any part thereof, and/or and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Second Lien Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange broker's board or at any of the Secured Parties’ offices or elsewhere at such prices as it may deem bestacceptable, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party Collateral Agent, Trustee or any Holder of a Note shall have the right upon any such public sale or sales, sales and, to the extent permitted by lawlaw and the terms of the Intercreditor Agreement, upon any such private sale or sales, to purchase for the benefit of itself, the Trustee and the Holders of the Notes, the whole or any part of said Second Lien Collateral so sold, free of any right or equity of redemption, which equity of redemption the Company each Grantor hereby releases. The Company Such sales may be adjourned and continued from time to time with or without notice. Collateral Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Collateral Agent deems necessary or advisable.
(b) If any Event of Default shall have occurred and be continuing, each Grantor further agrees, subject to the terms of the Intercreditor Agreement, at any Secured PartyCollateral Agent’s request, to assemble the Collateral, Second Lien Collateral and make it available to one Collateral Agent at a place or more of the Secured Parties at places designated by Collateral Agent which a Secured Party shall are reasonably selectconvenient to Collateral Agent and such Grantor, whether at the Company's such Grantor’s premises or elsewhere. The Secured Parties Until Collateral Agent is able to effect a sale, lease, or other disposition of Second Lien Collateral, Collateral Agent shall have the right to hold or use Second Lien Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Second Lien Collateral or its value or for any other purpose deemed appropriate by Collateral Agent. Collateral Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Second Lien Collateral while Second Lien Collateral is in the possession of Collateral Agent. Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Second Lien Collateral and to enforce any of Collateral Agent’s remedies (for the benefit of itself, Trustee and the Holders of the Notes), with respect to such appointment without prior notice or hearing as to such appointment. Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental sale to the care, safe keeping or otherwise of any or all of Secured Obligations as provided in the Collateral or in any way relating to the rights of the Secured Parties hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, the Company remaining liable for any deficiency remaining unpaid after the applicationIntercreditor Agreement, and only after so paying over such net proceeds proceeds, and after the payment by the Secured Parties Collateral Agent of any other amount required by any provision of law, need Collateral Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, the Company each Grantor waives all claims, damages, and demands against the Secured Parties Collateral Agent, Trustee or any Holder of a Note arising out of the repossession, retention or sale of the CollateralSecond Lien Collateral except such as arise solely out of the gross negligence or willful misconduct of such Collateral Agent, Trustee or such Holder of a Note as finally determined by a court of competent jurisdiction. The Company Each Grantor agrees that a Secured Party need not give more than 10 ten (10) days prior notice by Collateral Agent of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Company Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Second Lien Collateral are insufficient to pay all amounts Obligations, including any attorneys’ fees and other expenses incurred by Collateral Agent, Trustee or any Holder of a Note to which a Secured Party is entitledcollect such deficiency.
(c) The Company Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by the UCC and other applicable law) of any kind in connection with this Security Agreement or any Second Lien Collateral.
(d) To the extent that applicable law imposes duties on the Collateral Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Collateral Agent (i) to fail to incur expenses reasonably deemed significant by the Collateral Agent to prepare Second Lien Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Second Lien Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Second Lien Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Second Lien Collateral or to remove Liens on or any adverse claims against Second Lien Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Second Lien Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Second Lien Collateral through publications or media of general circulation, whether or not the Second Lien Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Second Lien Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Second Lien Collateral, whether or not the Second Lien Collateral is of a specialized nature, (viii) to dispose of Second Lien Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Second Lien Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Collateral Agent against risks of loss, collection or disposition of Second Lien Collateral or to provide to the Collateral Agent a guaranteed return from the collection or disposition of Second Lien Collateral, or (xii) to the extent deemed appropriate by the Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Collateral Agent in the collection or disposition of any of the Second Lien Collateral. Each Grantor acknowledges that the purpose of this Section 7(d), is to provide non-exhaustive indications of what actions or omissions by the Collateral Agent would not be commercially unreasonable in the Collateral Agent’s exercise of remedies against the Second Lien Collateral and that other actions or omissions by the Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(d). Without limitation upon the foregoing, nothing contained in this Section 7(d) shall be construed to grant any rights to any Grantor or to impose any duties on Collateral Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(d).
(e) Neither the Collateral Agent, Trustee nor the Holders of the Notes shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Second Lien Collateral therefor or any direct or indirect guarantee thereof. Neither the Collateral Agent, Trustee nor the Holders of the Notes shall be required to marshal the Second Lien Collateral or any guarantee of the Secured Obligations or to resort to the Second Lien Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Note Document shall be cumulative. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Collateral Agent, Trustee or any Holder of a Note, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Second Lien Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.
Appears in 1 contract
Samples: Second Lien Security Agreement (Finlay Fine Jewelry Corp)
