Remedies Upon Actionable Default. (a) If an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Collateral Documents with respect to the Available Portion of the Collateral. (b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obliged 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 such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition. (c) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein. (d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16. (e) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default. (f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document. (g) Each Grantor hereby covenants that on the earlier to occur of (i) the occurrence of a default under any Secured Document, (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 to 1, the Issuer will be required to exercise all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part of the Collateral in connection with any exercise of remedies, and to keep such shelf registration statement effective at all times until the earlier of the time (i) the Secured Obligations are repaid in full or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of by the Collateral Agent. (h) After all Actionable Defaults have been cured or waived, at the direction of the Majority Holders, the Collateral Agent shall enter into an amendment to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for the purpose of terminating the Collateral Agent’s exclusive control as a result of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure the Collateral Agent retains Control of such Deposit Account).
Appears in 1 contract
Samples: Security and Pledge Agreement (Harbinger Group Inc.)
Remedies Upon Actionable Default. (a) If an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Collateral Documents with respect to the Available Portion of the Collateral.this Agreement
(b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obliged 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 such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 1617.
(ed) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable non-exclusive license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section . In addition, such license shall apply be deemed to Real Property Collateral only to include the extent permitted by applicable law following terms and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of restrictions: (i) the occurrence any and all use of any Trademark pursuant to such license shall be of a default under any Secured Documentnature and quality consistent with the goodwill and reputation of such Trademark and past practices of the Grantor that owns such Trademark, (ii) all goodwill arising from any licensed use of any Trademark shall inure to the benefit of the owner of such time as Spectrum becomes a “well-known seasoned issuer” as defined under the Securities Act rules and regulationsTrademark, and (iii) at the licensee shall provide customary intellectual property notices and designations, including appropriate patent, trademark and copyright notices, in each case, in a manner consistent with the past practices of each Grantor and (iv) any time that the Liquid Collateral Coverage Ratio is less than 1.75 to 1, the Issuer will be required to exercise all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that licensed trade secrets shall be maintained in form suitable for use confidence and their trade secret status shall be maintained, in each case, subject to any requirements to disclose such trade secrets under applicable law or as required by any governmental body, agency or court (it being understood that, to the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part of the Collateral in connection with any exercise of remedies, extent practicable and to keep such shelf registration statement effective at all times until the earlier of the time (i) the Secured Obligations are repaid in full or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of not prohibited by the Collateral Agent.
(h) After all Actionable Defaults have been cured or waived, at the direction of the Majority Holdersapplicable law, the Collateral Agent shall enter into an amendment use commercially reasonable efforts to notify the Grantor of any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for the purpose of terminating the Collateral Agent’s exclusive control as a result of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure the Collateral Agent retains Control of such Deposit Accountdisclosure).
Appears in 1 contract
Samples: Indenture (Molycorp, Inc.)
Remedies Upon Actionable Default. (a) If and only if the Collateral Agent shall have received a notice of an Actionable Default, and during such time as such notice of an Actionable Default shall not have occurred been withdrawn in accordance with the provisions of Section 10, the Required Secured Parties may send to the Collateral Agent in writing, with copies sent simultaneously to each of the other Secured Parties (or, as to the Banks, to the Bank Agent, which will then distribute it to the Banks) and the Company, a demand for the exercise by the Collateral Agent, subject to the provisions of this Section 11, of rights, powers and remedies hereunder and under the Security Documents (a "REMEDIES DEMAND"). A Remedies Demand may be continuingincluded in a notice of Actionable Default or Notice of Default which also is a notice of Actionable Default. Upon the issuance of a Remedies Demand, all of the Secured Obligations shall become due and payable. After receipt of a Remedies Demand, the Collateral Agent may shall exercise (or cause its sub-agents to exercise) any or all such of the rights, powers and remedies available to it (or hereunder and in the Security Documents as it is instructed to such sub-agents) under exercise by the Collateral Documents with respect to the Available Portion of the Collateral.
(b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Required Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect writing directed to any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, with copies to the other Secured Parties (which instructions may be withheld included in its discretionthe Remedies Demand) shall be entitled, for and the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such saleCompany. Upon any sale of Collateral by The date the Collateral Agent (including is so directed to exercise any remedies pursuant to a power of sale granted by statute or under a judicial proceeding), this Section 11 is the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obliged 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 such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16.
(e) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default"Remedies Date"; provided, however, that with respect to any licenserights, sublicense or other transaction entered into by powers and remedies pertaining to the Cash Collections, the Cash Deposits, and/or notification to Account Debtors pursuant to 9-502(1) of the applicable Uniform Commercial Code, the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of may (i) prohibit the occurrence withdrawal by the Company of a default under any Collateral maintained with any Secured DocumentParty or of any Cash Deposits, and (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under require the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 Company to 1, the Issuer will be required to exercise deposit all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by Cash Collections either with the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part or an Approved Depository, and/or direct all Approved Depositories to remit Cash Deposits to the Collateral Agent, pursuant to Section 3.1.11(b) of the Collateral Security Agreement, if it determines in connection with any exercise of remedies, good faith that such prohibition and/or requirement will promote and to keep such shelf registration statement effective at all times until protect the earlier interests of the time Secured Parties and maximize both the value of such Collateral and the present value of the 189 ratable recovery by each of the Secured Parties on the Secured Obligations; provided, further, that (i1) the Secured Obligations are repaid Parties agree that none of them may instruct the Collateral Agent to refrain from exercising any rights, powers or remedies expressly authorized by the Required Secured Parties pursuant to this Section, and any instruction in full violation of this provision shall be of no force or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of effect and shall be disregarded by the Collateral Agent.
, (h2) After all Actionable Defaults have been cured or waived, at if and to the direction extent that the instructions of the Majority HoldersSecured Parties are in conflict, then the Collateral Agent shall enter into an amendment to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for exercise the purpose rights, powers and remedies required by the instructions which it determines, in good faith, will promote and protect the interests of terminating the Secured Parties and maximize both the value of the Collateral Agent’s exclusive control and the present value of the recovery by each of the Secured Parties on the Secured Obligations, and (3) once instructions have been received from the Required Secured Parties, as a result required by and in accordance with this Section 11, the actions of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure shall be governed thereby and the Collateral Agent retains Control of such Deposit Account)shall not take any further action which would be contrary thereto, except as provided in subclause (2) above.
Appears in 1 contract
Remedies Upon Actionable Default. (a) If an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Collateral Documents with respect to the Available Portion of the Collateral.
(b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obliged 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 such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16.
(e) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of (i) the occurrence of a default under any Secured Document, (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 to 1, the Issuer will be required to exercise all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part of the Collateral in connection with any exercise of remedies, and to keep such shelf registration statement effective at all times until the earlier of the time (i) the Secured Obligations are repaid in full or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of by the Collateral Agent.
(h) After all Actionable Defaults have been cured or waived, at the direction of the Majority Holders, the Collateral Agent shall enter into an amendment to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for the purpose of terminating the Collateral Agent’s exclusive control as a result of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure the Collateral Agent retains Control of such Deposit Account).
Appears in 1 contract
Samples: Indenture (Harbinger Group Inc.)
Remedies Upon Actionable Default. (a) If an any ^| Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise Trustee, acting at the direction of any Enforcing Party, may:
(or cause its sub-agents a) exercise, in addition to exercise) any or all of the other rights and remedies available to it (or to such sub-agents) under the Collateral Documents with respect to the Available Portion of the Collateral.
(b) Without limiting the generality of the foregoingit, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect exercised except to the extent that the exercise of such rights would violate any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted; and 15,16
(b) take, sell in the name or otherwise dispose in the name of the Collateral or any part thereof in one or more parcels at public or private salePledgor, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms action as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Trustee may at any time in reasonably determine to be necessary or advisable to cure any default under the future have under any rule Assigned Agreements and to protect the rights of law the Pledgor or statute now existing or hereafter enactedthe Collateral Trustee thereunder. The Collateral Agent Trustee shall not incur no liability if any action so taken by it, or on its behalf, shall prove to be obliged to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public inadequate or private sale from time to time by announcement at the time and place fixed thereforinvalid, and such sale maythe Pledgor agrees to indemnify and hold the Collateral Trustee and its officers, employees, agents and representatives harmless against and from all claims, demands, lawsuits, losses, costs, liabilities and expenses (including, without further noticelimitation, be made at the time attorneys’ fees, court costs and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(cinvestigation expenses) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received incurred by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale Trustee or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16.
(e) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned such officers, employees, agents or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of (i) the occurrence of a default under any Secured Document, (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 to 1, the Issuer will be required to exercise all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by the Collateral Agent representatives in connection with any disposition such action or by reason of Spectrum Equity Interests constituting part of the Collateral or in connection with any the exercise of remedies, and to keep such shelf registration statement effective at all times until the earlier of the time (i) the Secured Obligations are repaid in full or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of by the Collateral Agent.
(h) After all Actionable Defaults have been cured or waivedTrustee of any of its other rights under this Agreement, at the direction of the Majority Holders, except that neither the Collateral Agent Trustee nor its officers, employees, agents or representatives shall enter into an amendment be entitled to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended indemnity hereunder for the purpose any loss, cost, liability or expense arising out of terminating the Collateral Agent’s exclusive control as a result of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure the Collateral Agent retains Control of such Deposit Account)its or their gross negligence or willful misconduct.
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Samples: Assignment Agreement
Remedies Upon Actionable Default. (a) If and only if the Collateral Agent shall have received a notice of an Actionable Default, and during such time as such notice of an Actionable Default shall not have occurred been withdrawn in accordance with the provisions of Section 10, the Required Secured Parties may send to the Collateral Agent in writing, with copies sent simultaneously to each of the other Secured Parties (or, as to the Banks, to the Bank Agent, which will then distribute it to the Banks) and the Company, a demand for the exercise by the Collateral Agent, subject to the provisions of this Section 11, of rights, powers and remedies hereunder and under the Security Documents (a "REMEDIES DEMAND"). A Remedies Demand may be continuingincluded in a notice of Actionable Default or Notice of Default which also is a notice of Actionable Default. Upon the issuance of a Remedies Demand, all of the Secured Obligations shall become due and payable. After receipt of a Remedies Demand, the Collateral Agent may shall exercise (or cause its sub-agents to exercise) any or all such of the rights, powers and remedies available to it (or hereunder and in the Security Documents as it is instructed to such sub-agents) under exercise by the Collateral Documents with respect to the Available Portion of the Collateral.
(b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Required Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect writing directed to any Personal Property Collateral and, in addition, the Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, with copies to the other Secured Parties (which instructions may be withheld included in its discretionthe Remedies Demand) shall be entitled, for and the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such saleCompany. Upon any sale of Collateral by The date the Collateral Agent (including is so directed to exercise any remedies pursuant to a power of sale granted by statute or under a judicial proceeding), this Section 11 is the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obliged 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 such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Collateral Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16.
(e) For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised only upon the occurrence and during the continuation of an Actionable Default"Remedies Date"; provided, however, that with respect to any licenserights, sublicense or other transaction entered into by powers and remedies pertaining to the Cash Collections, the Cash Deposits, and/or notification to Account Debtors pursuant to 9-502(1) of the applicable Uniform Commercial Code, the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of may (i) prohibit the occurrence withdrawal by the Company of a default under any Collateral maintained with any Secured DocumentParty or of any Cash Deposits, and (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under 101 require the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 Company to 1, the Issuer will be required to exercise deposit all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by Cash Collections either with the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part or an Approved Depository, and/or direct all Approved Depositories to remit Cash Deposits to the Collateral Agent, pursuant to Section 3.1.11(b) of the Collateral Security Agreement, if it determines in connection with any exercise of remedies, good faith that such prohibition and/or requirement will promote and to keep such shelf registration statement effective at all times until protect the earlier interests of the time Secured Parties and maximize both the value of such Collateral and the present value of the ratable recovery by each of the Secured Parties on the Secured Obligations; provided, further, that (i1) the Secured Obligations are repaid Parties agree that none of them may instruct the Collateral Agent to refrain from exercising any rights, powers or remedies expressly authorized by the Required Secured Parties pursuant to this Section, and any instruction in full violation of this provision shall be of no force or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of effect and shall be disregarded by the Collateral Agent.
, (h2) After all Actionable Defaults have been cured or waived, at if and to the direction extent that the instructions of the Majority HoldersSecured Parties are in conflict, then the Collateral Agent shall enter into an amendment to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for exercise the purpose rights, powers and remedies required by the instructions which it determines, in good faith, will promote and protect the interests of terminating the Secured Parties and maximize both the value of the Collateral Agent’s exclusive control and the present value of the recovery by each of the Secured Parties on the Secured Obligations, and (3) once instructions have been received from the Required Secured Parties, as a result required by and in accordance with this Section 11, the actions of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure shall be governed thereby and the Collateral Agent retains Control of such Deposit Account)shall not take any further action which would be contrary thereto, except as provided in subclause (2) above.
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Remedies Upon Actionable Default. (a) If an Actionable Default shall have occurred and be continuing, the Collateral Agent Trustee may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Collateral Documents with respect to the Available Portion of the CollateralSecurity Documents.
(b) Without limiting the generality of the foregoing, if an Actionable Default shall have occurred and be continuing, the Collateral Agent Trustee may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Personal Property Collateral and, in addition, the Collateral Agent Trustee may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral AgentTrustee’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent Trustee may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral AgentTrustee, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent Trustee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent Trustee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent Trustee or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent Trustee shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent Trustee accepts the first offer received and does not offer such Collateral to more than one offeree. The Collateral Agent Trustee may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Collateral Agent Trustee sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Collateral Agent Trustee and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Collateral Agent Trustee may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Grantor(s) as (and if) required by Section 16.
(e) For the purpose of enabling the Collateral Agent Trustee to exercise rights and remedies under this Agreement at such time as the Collateral Agent Trustee shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent Trustee an irrevocable license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent Trustee may be exercised only upon the occurrence and during the continuation of an Actionable Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent Trustee in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Actionable Default.
(f) The foregoing provisions of this Section shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(g) Each Grantor hereby covenants that on the earlier to occur of (i) the occurrence of a default under any Secured Document, (ii) such time as Spectrum becomes a “well-known seasoned issuer” as defined under the Securities Act rules and regulations, and (iii) at any time that the Liquid Collateral Coverage Ratio is less than 1.75 to 1, the Issuer will be required to exercise all of its contractual rights and use its commercially reasonable efforts to, as promptly as possible, cause Spectrum to file and become effective a shelf registration that shall be in form suitable for use by the Collateral Agent in connection with any disposition of Spectrum Equity Interests constituting part of the Collateral in connection with any exercise of remedies, and to keep such shelf registration statement effective at all times until the earlier of the time (i) the Secured Obligations are repaid in full or (ii) all Spectrum Equity Interests pledged as Collateral hereunder have been disposed of by the Collateral Agent.
(h) After all Actionable Defaults have been cured or waived, at the direction of the Majority Holders, the Collateral Agent shall enter into an amendment to any Deposit Account Control Agreement that requires such Deposit Account Control Agreement be amended for the purpose of terminating the Collateral Agent’s exclusive control as a result of an Actionable Default over the related Deposit Account in the instance the Collateral Agent exercised remedies over the related Deposit Account (but otherwise such amendment will ensure the Collateral Agent retains Control of such Deposit Account).
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